Can You Re-Copyright Photos In The Public Domain?

from the not-good dept

Davis Freeberg wrote in to tell us about how a small publishing company, Summertown Sun, had issued takedown notices for public domain photographs that were put on Flickr. What appears to have happened is that a user, by the name of "Dazzlecat," posted some photos to Flickr that she believed were public domain photographs (vintage photographs from over a century ago). However, Summertown Sun sent a takedown claiming copyright ownership of those photos. That seems odd, since public domain is... public domain. Either way, Yahoo/Flickr obeyed the takedown notice and then also took down a followup altered image and blog post that trashed Summertown for the takedown, saying that it violated Flickr's terms of service. Yahoo is, of course, free to do what it wants -- and has the right to takedown whatever it feels violates its terms of service, but what's more interesting is the question of whether or not the images are in the public domain, and whether or not Summertown's takedown was actually legal.

In a response to the original complaint about the takedowns, Summertown tried to defend itself by claiming:

We claim copyright on images we have creatively altered, which includes hundreds in our collections; such alterations remove them from the public domain. In addition we offer all of our images under the terms of a license agreement, regardless of copyright status, which is common practice in the image industry in recognition of considerable expenditure of production work, money, and other resources in making our products available.

That seems troubling -- and not quite right to me. You can't "remove" something from the public domain (Congress can apparently, but that's another issue). You can alter a work and then copyright the alterations if they are significant changes. Minor tweaks and alterations are not copyrightable and certainly the underlying original image is still very much in the public domain. Now, looking over the Victorian photographs that Summertown offers, many of them do not seem to have major alterations at all. Some appear to be colorized, so perhaps (maybe?) they could claim that the colored part of the images are copyrighted, but even that might be a stretch.

Furthermore, the fact that Summertown engages in the "common practice" of putting forth a license, regardless of copyright status, is rather meaningless. If it's in the public domain, it's in the public domain. You can't pretend the public domain doesn't exist just because you add a license to something. If that were the case, there would be no public domain at all.

I've run this by a few copyright lawyers I know, and most agreed that Summertown's position seems tenuous, though it really does depend on what photos, specifically, were uploaded to Flickr. So, without knowing exactly which images were placed in the Flickr stream, it's not 100% clear that Summertown violated the DMCA with a false takedown (it's against the law to send a takedown if you don't actually own the copyright), but if the photo in question really did not have significant alterations, then it seems likely.

42 Comments | Leave a Comment..