Public domain works - copyright issues

I would be interested on the take of the members on a copyright issue. A US context is assumed.

I will frame it in one very specific form, but of course the issues are broader.

• A photographic image is known to be in the public domain by virtue of its having been taken by a U.S. government employee as part of his official duties.

• An online "image store" acquires a print of the photo, presumably originally issued by the sponsoring agency's public information image.

• The store scans the photo. They do not "alter" it in ways such as removing objects, artificially changing the background, etc. Of course, the exact nature of the digital file is determined by such things as the scanner profile.

• The store offers online for sale prints of the image in various sizes, mounted and unmounted, and as well (for a price) the image file (in rather high resolution) as a download.

• They also have in their online catalog a viewable copy of the image at modest resolution. It does not contain any visible "watermark" or such.

• I download this latter image (not as a paid transaction), work it over a little bit, print it, mount it, and offer it for sale at a neighborhood rummage sale.

Now, the kernel of the issue is this: Does the "image store", by scanning the image and putting it in digital form, create a "derivative work" in which the store may claim any rights under copyright doctrine?

More directly, have I violated any rights of the agency by downloading this "catalog" image, printing it, and offering it for sale?

Best regards,

Doug

The problem with this kind of questions is that they assume that the law is absolute. It is not. The courts can decide as they please.

So the answer to all these questions is simply that the other party may sue you as they wish and may have very good lawyers.

Hi Doug,

Interesting exercise, although the usual disclaimer applies; IANAL.

Doug Kerr said:

I would be interested on the take of the members on a copyright issue. A US context is assumed.

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An important limitation! Copyright law can differ by country, although there are also similarities. But the devil is in the detail.

I will frame it in one very specific form, but of course the issues are broader.

• A photographic image is known to be in the public domain by virtue of its having been taken by a U.S. government employee as part of his official duties.

Click to expand...

I'm not so sure. IMHO, the copyright remains with the government. Afterall, we're not supposed to make copies of money either.

• An online "image store" acquires a print of the photo, presumably originally issued by the sponsoring agency's public information image.

Click to expand...

In legal matters, I try to not assume anything. Maybe it is important to know the details, maybe not. Perhaps the print came with instructions about what it could be used for?

• The store scans the photo. They do not "alter" it in ways such as removing objects, artificially changing the background, etc. Of course, the exact nature of the digital file is determined by such things as the scanner profile.

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Why was a scan made, and not a request for another copy from the source? It does constitute an act of copying the 'original', one of the things the copyright holder needs to give permission for, save a few exceptions that are outlined in the Copyright Act.

• The store offers online for sale prints of the image in various sizes, mounted and unmounted, and as well (for a price) the image file (in rather high resolution) as a download.

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This constitutes an act of multiplying, another thing normally reserved for the copyright holder. Maybe that distinction is not made in the US, but it probably is. Needs verifying.

• They also have in their online catalog a viewable copy of the image at modest resolution. It does not contain any visible "watermark" or such.

• I download this latter image (not as a paid transaction), work it over a little bit, print it, mount it, and offer it for sale at a neighborhood rummage sale.

Click to expand...

Using such an image e.g. for personal practice in postprocessing or such, would normally be considered as "fair use". The slightly modified low resolution version of the original might reflect poorly on the original creator's skill. That's why the copying and multiplication activity is normally reserved for the creator/author. The modifications may constitute something that's protected by copyright on it's own.

Now, the kernel of the issue is this: Does the "image store", by scanning the image and putting it in digital form, create a "derivative work" in which the store may claim any rights under copyright doctrine?

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It almost certainly cannot be considered as a derivative work as intended by the Copyright Act (Chapter 1, section 103), it's a(n illegal) copy and a new copyright can only apply to additions to that original work. The copyright on the original work remains with the author, the state. Even a copy in a different form, e.g. a picture of a painting, does not constitute a derivative work, it's a copy. Maybe, just maybe, this is different in the USA, but I doubt it.

More directly, have I violated any rights of the agency by downloading this "catalog" image, printing it, and offering it for sale?

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Downloading it is already inevitable by just viewing the webpage. Making a deliberate copy of the webpage image is not allowed, except for a number of limitative activities described in the Copyright Act (Chapter 1, section 107 ... 112). Making money from it, or attempting to, might be an issue in the USA. IMHO it shouldn't make a difference, not allowed remains not allowed, although it might result in different compensation claims by the rightfull copyright owner, the state. The modifications, alterations themselves that you may have added may be subject to a new copyright claim, by you, but only for the additions/alterations if it's considered substantial enough to create a derivative work.

I hope this is an academic exercise, otherwise it might also (besides legal advice) be useful to mobilize the media (e.g. donate the proceeds to a worthy cause, and complain that the government wants to make that impossible). Governments have almost limitless budgets for petty affairs against individuals, but they also need to justify their expenses. The media are difficult to use in their favor when the game is played well. When the dispute is with the on-line shop, I'd say they have more to lose than they can possibly win, because they seem to have made money from a work that's copyrighted by the government (unless they were licenced to do so).

Cheers,
Bart

Bart_van_der_Wolf said:

Hi Doug,

I'm not so sure. IMHO, the copyright remains with the government. Afterall, we're not supposed to make copies of money either.

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No, that is quite so, and is often referred to. Here is an example discussion of that:

http://en.wikipedia.org/wiki/File:Washing_loco.jpg

Why was a scan made, and not a request for another copy from the source?

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Well, for one thing (the image above), in one case, the issuing agency was dissolved 40 years ago!

But more importantly, the "store" wants to offer prints in various sizes, downloadable files, and so forth. Another 8x10 glossy print from the agency, even if they existed, and were willing to send one, would be no help. It too would have to be scanned.

It almost certainly cannot be considered as a derivative work as intended by the Copyright Act (Chapter 1, section 103), it's a(n illegal) copy and a new copyright can only apply to additions to that original work. The copyright on the original work remains with the author, the state.

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There is no copyright. The state's rights are vacated by law (the work automatically coming into the public domain at inception).

Even a copy in a different form, e.g. a picture of a painting, does not constitute a derivative work, it's a copy. Maybe, just maybe, this is different in the USA, but I doubt it.

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I think that's the key point.

Downloading it is already inevitable by just viewing the webpage. Making a deliberate copy of the webpage image is not allowed . . .

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That probably doesn't apply here, since the work itself is in the public domain.

Thanks for your thoughts.

Best regards,

Doug

Doug Kerr said:

There is no copyright. The state's rights are vacated by law (the work automatically coming into the public domain at inception).

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Apparently so.
http://www.copyright.gov/circs/circ01.pdf states on page 5: "Works by the U. S. government are not eligible for U. S. copyright protection".

Even a copy in a different form, e.g. a picture of a painting, does not constitute a derivative work, it's a copy. Maybe, just maybe, this is different in the USA, but I doubt it.

Click to expand...

I think that's the key point.

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I think that Chapter 1, section 103, sub b., of the Copyright Act is quite clear:
"(b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the preexisting
material employed in the work, and does not imply any exclusive right
in the preexisting material".

Therefore, it seems, if there is no contribution to a preexisting material then there are no rights, and one could question if there even is a derivative work, instead of a mere copy. And a mere copy is certainly not an original work.

The above quoted and linked circular 1 also states on page 3:
"Several categories of material are generally not eligible for federal copyright protection. These include among others:
...
Works consisting entirely of information that is common
property and containing no original authorship ...".

Finally, the formal definition of a derivative work is given in Chapter 1, section 101, and reads:
"A “derivative work” is a work based upon one or more preexisting works, such
as a translation, musical arrangement, dramatization, fictionalization, motion
picture version, sound recording, art reproduction, abridgment, condensation, or
any other form in which a work may be recast, transformed, or adapted. A work
consisting of editorial revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship, is a “derivative
work”".

Cheers,
Bart

Hi, Bart,

Makes sense to me.

Thanks.

Best regards,

Doug