A nonprofit organization recently challenged the Smithsonian Institution’s use of copyright notices and other warnings in conjunction with its images on the Smithsonian website. The Smithsonian is a government entity and section 105 of the Copyright Act states that copyright protection is not available for “any work of the United States Government.” If the image is produced by an employee of the Smithsonian, why does it claim copyright?
The question is a bit complicated, naturally. Works produced by Smithsonian employees who are federal employees are considered to be in the public domain. Trust fund employees who create works may result in a copyrighted work which the Smithsonian may own or may share with the employee. See Protection of Intellectual Property.
Nonetheless, when one goes to the Smithsonian website to view the images, there is a detailed images copyright policy http://www.si.edu/copyright/ which begins by saying the “Content is protected by Intellectual Property Laws” and is the property of the Smithsonian. On the other hand, fair use is permitted. (Is that not the law for copyrighted images?) More importantly, if the Smithsonian is a government entity would the works not be in the public domain anyway?
A detailed Image Reproduction Fee schedule is available on the image pages on the website.
Again, if the works are public domain why the fee schedule? The following statement appears on the Permissions page:
Licensing and imaging fees directly support our collections and projects. Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used. Smithsonian Libraries provides free and open access to its digital images and the images may be freely downloaded for personal, research and study purposes only.
No wonder there is some confusion about whether the Smithsonian Institution claims copyright in its images.
On May 19, 2007, Public.Reource.Org announced on its website that it had taken matters into its hands and downloaded almost 6300 Smithsonian images “of national significance” and uploaded them onto flickr.com. Its stated purpose in taking this action is to get the Smithsonian to adopt an online distribution of images policy that is better aligned with its mission.
The Smithsonian’s fee for use of images raises many issues for libraries, archives and scholars who want to use images in their publications. Are these publications commercial? Does a scholar who uses an image in a scholarly monograph need to pay the fees because the book is published by a commercial publisher? More importantly, should these images not be in the public domain – they are part of our national heritage.
There are many rewards, but also certain obligations that come with public status. Just as the U.S. Congress could not turn the video from congressional hearings into copyrighted materials, so our Smithsonian Institution lacks the right to encumber the public domain that is our nation’s attic.