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Tuesday, May 22, 2007

Getty Claiming Copyright to National Archives Images and Selling Them

By Bob Shell


It seems that Getty Images learned a few years ago that they could buy 4x5 negatives of images from the US National Archives for $5 each. They bought thousands. Now they are selling these same images through their stock agency and claiming copyright on them. The vast majority of the images in the National Archives were taken by government employees and are public domain.

As public domain images, these images belong to us, the U.S. public. Getty, or anyone else, has absolutely no right to claim copyright to these images and sell them.

We need to spread the word on this, and any of Getty's customers who have paid to license such images should demand an immediate and full refund.

Posted by: BOB SHELL

Featured Comment by Morven: "It's unfortunately very common for people to claim control over works that are actually in the public domain.

"Many of them base their 'claim' on the legal theory that lost in the well-known case of Bridgeman vs. Corel, in which it was reaffirmed that U.S. copyright law requires at least a minimal level of creativity.

"They assume that the act of scanning or photographing the public-domain original creates a derivative work which can itself be copyrighted, even though the original cannot. This is what Bridgeman vs. Corel explicitly denied, based on the Feist vs. Rural case (in which it was established that a telephone directory could not be copyrighted, for similar reasons). Because Bridgeman vs. Corel was never challenged in appeals court, they argue that its opinion is not binding and that the law might turn out different—however, it's been eight years and nobody in the industry has been foolish enough to risk finding out for sure that their claims are groundless.

"In many places outside the U.S., no creativity at all is required to establish new copyright; thus a simple scan or photocopy of a public domain work creates new copyright and this kind of scam is completely legal.

"In this case, even if Getty et al. were correct about U.S. copyright law, it would only apply to images copied from their copy of the work. This is, however, the way that many museums, art galleries etc. make their money—by restricting access to public domain works and establishing themselves as the gatekeeper to 'legal' copies.

"Because Bridgeman vs. Corel appears to be a good reading of U.S. law, museums probably can't enforce copyright claims on photos and scans of public domain works, though they can still sue the original licensee under contract law if they allow any copies of the public domain artwork to get 'free.'

"Outside the U.S., though, they can lock up public domain works forever."

Featured Comment by Carolyn E. Wright, Esq.: "Has Getty taken the image down? Nothing came up on the link or a search on the photo #.

"Generally, copyright protection is not available for 'any work of the United States Government.' (17 U.S.C. Section 105.) Any work that is 'prepared by an officer or employee of the United States Government as a part of that person's official duties' constitutes a 'work of the United States Government.' (17 U.S.C. Section 101.) Those works fall into the public domain.

"Sometimes, however, copyrighted works are created by non-government personnnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The 'government works exception' then allows the federal government to hold the copyrights for those works transferred to it by assignment. Some have argued that the government is using this exception unfairly as a way to circumvent the copyright law. The government works exception has been used to prevent the copying or creation of derivative works from such varied items as a film series on early Supreme Court cases and the Sacagawea coin. Recently, The Vietnam Women’s Memorial Foundation, Inc. made claims to the Vietnam Women’s Memorial, a bronze sculpture created by Glenna Goodacre of Sante Fe.

"The Government Works Exception would not apply to this case. However, since Getty bought the negatives, it can sell the reprints based on the hi-res scan and it does not have to give the negatives to others for them to make copies. Having the negatives does not impart a transfer of the copyright. But Getty cannot prevent others from copying the photo if they can make reproductions from other sources."

22 Comments:

Blogger todd said...

source?

8:27 AM  
Blogger Daniel said...

What a great shot!

So, can I have a hi-res drum scanned tiff please?

Thanks

8:30 AM  
Blogger Erma said...

Bob Shell is a professional photographer. He is well respected and has had many books published. He's one of the "Old Timers" and I think he's also affiliated with ImagingInsider.com, the photo news website that also has Henry Wilhelm, Dougglas Ford Rea, and others on the board of directors. Bob's website is BobShell.com.

8:36 AM  
Blogger Tim said...

Actually, if they're public domain, Getty do have every right to sell them, just not to claim copyright.

9:38 AM  
Blogger Ken Tanaka said...

Hmmm. Like Todd, I a suspicious of this story.

Mike, as you posted this do you have some second-source substantiation of its accuracy?

10:16 AM  
Blogger Paul said...

They could sell all the prints and hi-res drum scans they want, what they cant sell is license to the image - which is what getty sells.

10:53 AM  
Blogger MHV said...

I'm sure Getty has a right to sell them if people who don't know better are willing to give them money (laws are not there to prevent stupidity), but they sure can't claim anything about copyright. That is pure copyright infringement.

And yes, I'd like to see a source of the reported story, perhaps some quotes or case history, just some information to validate the claims.

11:27 AM  
Blogger tim atherton said...

yep - they can sell them for all they want to those willing to buy -nothing wrong with that at all(it's easier for a magazine editor to buy a quick copy form Getty than to track down the neg at the archives and order a copy)

they just can't stop others doing the same, or their buyers reselling them

at least they shouldn't be able to... under US Copyright law

but who knows these days

The images are there for anyone to make a buck of if they can - not just Getty

(they are probably trying to claim copyright on a substantial re-working/repairing of the images, which is dubious)

Don't know if they still do, but they used to re-sell current DoD news photos - free from the DoD if you can find them - just more convenient from Getty

11:31 AM  
Blogger Leener said...

Getty Images and Corbis both license public domain content from the National Archives, Library of Congress and other government sources and have done for years. The agencies provide PD content on their sites with enhanced keywording and quick availablilty for professional usage.

The Libray of Congress and the National Archives will provide images but not licenses. I suggest the LOC and NA web sites for further information.
http://www.loc.gov/rr/print/

12:34 PM  
Blogger Jammy said...

So do they have model releases for all these chaps? :-) "Hey that's me! Why am I in a toothpaste add?"

12:47 PM  
Blogger erlik said...

The same story by Bob Shell on imaginginsider.com. Substantiated by the exact links to the relevant photos and info.

http://www.imaginginsider.com/?p=30170

And yes, Getty apparently can sell the reproductions of the old photos, but not claim copyright on the photos themselves.

http://englishhistory.net/tudor/art.html

1:42 PM  
Blogger Mike Johnston said...

Bob provided links to examples of public-domain images being sold by Getty, but they weren't direct links so I opted not to include them. (I personally dislike links that say "Go to [link] then click on the yellow button then enter the number 12345 then scroll to the bottom and recite your address three times" etc.)

How nefarious this all is depends on your interpretation. Getty's intent seems pretty clearly to deceive--i.e., that if you don't pay them you'd be in trouble if you used these images.

And it's not strictly copyright we're talking about here. Images made "for hire" for the Federal government cannot be copyrighted, by law.

--Mike

3:23 PM  
Blogger tim atherton said...

when getty and corbis first started up they went through a whole thing of trying to claim separate copyright on images from their contributions which had been re-worked by their techies for putting on the website

I don't know if they succeeded, or gave up (or if it was ever tested in court)

but it sounds like they are trying to do the same - that their "substantial" (in their opinion) re-working/cleaning/adjusting of the images makes it a new work which they can copyright....

since the bridgeman vs. corel case, museums have also tried finding a way of doing this with their photographs of work long in the public domain to try and meet the bar for "originality" in order for the copywork/copy-photographs to be copyrighted to try and counter the courts decision on that.

As it stands right now, copywork of two dimensional objects doesn't meet the criterea to allow for it to by copyrighted.

(That second link form erlik gives a fair outline)

5:28 PM  
Blogger Ahmad Alhashemi said...

I'm not a lawyer, but my first impression is that what they are doing is perfectly legal.

What they cannot claim is that they took those pictures, this is called intellectual property, not copyright.

Copyrights are different. Copyrights do not apply to the work itself, it applies to an 'instance' or a single 'copy' if you may. What copyrights do is that they define weather someone can make further copies of the copy they own and give them away to other people.

This definitely happens a lot. You take a picture, you make a single copy of it and you give it to Corbis. Corbis now owns this single copy. What you also do is that you give Corbis a 'license' to make further copies of the copy they own. The terms of license can give them the ability to further license it to other people like design agencies, which they definitely do.

You can actually put an image up on your website, allow people to make copies of it, and give everyone a license to copy the photo without any limitations. So every single person downloading the photo will have copyrights to his own copy of the same photo.

Lets assume that someone named George got a copy of my picture. Now he holds copyrights to it. He can license it under any terms he wants and sell it for any price he wants. Of course that would be stupid because people can get a copy of the same photo for free from someone else. Stupid, but perfectly legal.

Now George is have a problem. Many people are making copies from 'his' copy and are not complying to his license. The problem is that he cannot prove that they were copies of his copy. Everybody is claiming that they copied it from the free sources, even if they actually got it from him. How can he prove that they are making copies of his own copy of the photo?

He can change the photo. If he changes its format, for example, and it becomes the only copy with this format, he can prove that it was copied from his own copy. This way he can legally defend his own copy of the photo.

Of course this doesn't imply in any way that he can sue other people who got the photo from the original source (that was my website if you still remember). He only claims copyrights to his own copy.

The reason all of this was possible is that my original license was too permissive. What is even more permissive than my license is a complete copyright weaver. This is what is mean by anything in the 'public domain'.

It doesn't mean the the copyrights are owned by the 'public'. It means that there are no copyrights at all.

All photos are copyrighted by default to the original photographer. So for something to be in the public domain, it has to be explicitly 'put' in the public domain by the original photographer.

AFAIK, the US government forces all of its employees to put anything they do for the government in the public domain. But this doesn't apply, however, to contractors.

I guess the bottom line is that what Corbis is doing is perfectly legal, but it only applies to their copies of the photo. They definitely don't own copyrights to the copies in the original archive.

If you were wondering why I know so much about copyright laws, it is because of my background in computer programming with open source software in which what I've mentioned in here is a fraction of what you have to deal with regarding licensing and copyright laws.

5:46 PM  
Blogger dmg said...

You need to read the American copyright act (section 103, of title 17). It deals with derivative works.

If getty removes one spec of dust, it can then claim a "derivative" work of the original photo, and copyright it accordingly. They can't claim copyright on the original image; only in the derivative.

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000103----000-.html

If it the same issue with respect to the derivative work you have made of Lange's photograph. You invested time and effort in restoring the image, and you do not want everybody to benefit from that (for free). That is, I presume, the reason you did not make available for download the resulting file (even if you still consider it in the public domain).

daniel german

7:01 PM  
Blogger tim atherton said...

If getty removes one spec of dust, it can then claim a "derivative" work of the original photo, and copyright it accordingly. They can't claim copyright on the original image; only in the derivative.

Not correct

there can be original authorship and new copyright based on something being a derivative work only if the derivative contains a significant amount of new material or is sufficiently different that it can be regarded as a new work.

this has been tested in several court cases.

Removing one speck of dust doesn't even get close to the bar.

8:17 PM  
Blogger Ctein said...

Dear dmq,

You've got it backwards. The copyright on an original work extends to all derivative works produced from it. There's major case law (and some substantial penalties have been leveed) that confirms that. It's now a slam dunk.

This means that if you buy a photo of mine (but don't license any usage rights to it to it) you can't license it to anyone else nor copyright it, no matter how you modify it, no matter how much work you put in doing so. There is a practical limit-- if you modify the work so much it isn't even recognizable as mine, I'll have a lot of trouble tracking down the violation... but legally that is still a violation.

My copyright on my photos protects not just the original, but all derivative works. period. And you cannot claim a copyright that is in conflict with mine.

But... there is something called a "compilation copyright" -- that's the copyright noice you see in the front of a magazine, or on many web sites. It basically protects the publisher's investment in that particular publishing of the works. It exists, though, inferior to the original work's copyright. So, when I have an article published in PhOTO Techniques, PT owns a copyright on their publication of that article (and any accompanying illustrations), but I still hold the copyright on the original article and illos. They are mine to do with as I see fit and PT has no inherent right to use the work outside the scope of their compilation nor limit my use of it (this is always subject to modification by contractual agreement with PT, of course).

Further but... I *can* claim a compilation copyright on public domain work. If I decide to publish a book of reproductions of paintings by Rembrandt, for example, you can't just copy my book and sell it yourself-- my compilation copyright protects that instantiation of the works. You can publish your own book containing the same paintings, but you can't use my copyrighted book as the source material.

Similarly, I can acquire old public domain photos from any (noncopyrighted) source I like, build a web site around them, and protect that site with a compilation copyright. You cannot use those images from my web site without my permission. If I want to license the use of images from my web site, I can do so. I can't prevent YOU from obtaining and using the same photos from a different source. Just from mine.

What Getty is doing is not in any way in conflict with copyright law nor fair use, unless they try to restrict the use of the same photo obtained from another source.

It may or may not conflict with specific US law relating the the National Archives (which I'm not up on), but it is not a copyright violation.

pax / Ctein

8:56 PM  
Blogger Ctein said...

Dear Tim,

This is kind of an aside, since the Getty question clearly doesn't fall within this realm, but....

I'll trust your memory to be better than mine on this, but I can't recall a case where a derivative work was copyrightable. Can you cite me one?

pax / Ctein

3:43 AM  
Blogger Brad said...

OK folks, lets think this through before we start calling people names and assuming Getty is either stupid or deceptive. (Full disclosure: as a photographer I sell photos through a Getty-owned company).

Anyways, I used to be a newspaper designer. Let me pose a scenario here. My editor tells me we need a specific archive picture for tomorrow's paper. It need to be on the page for prepress in less than two hours. Do you really think I would even try to call the library of congress or wade through their webpages to find a photo? Of course not. I'm going to go straight to AP or Getty where I can search it in about 30 seconds and charge it to my standing account. Getty is no trying to deceive me or "claim copyright"; they'r providing me a valuable service.

5:52 AM  
Blogger tim atherton said...

Yes Brad, that's the case - and a very functional one. BUT Getty can't claim copyright in those images as they seem to be doing (they can try and impose some kind of contract on the end user, but not based on copyright) That's what seems nefarious.

11:27 AM  
Blogger Bryan C said...

Getty shouldn't claim they own copyright for these images. That said, I suspect the photos from the Archives are just being tagged with the same copyright boilerplate that they use for other images. They should clarify that.

There's absolutely nothing wrong with redistributing or selling the images, though. That's what public domain is for. Getty's adding value by scanning, retouching and indexing the material.

12:02 PM  
Blogger Ken said...

How is this any different than what the Bettmann Archive has done for decades?

1:09 PM  

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