Historical Association Claims Copyright To Scans Of 100 Year Old Photos

from the one-step-forward,-two-steps-back dept

Mon, Apr 26th 2010 6:42pm — Dennis Yang

The Clinton County Historical Glass Negatives Portrait Project has been "diligently identifying, sorting, re-sleeving and generally rediscovering a collection of over 15,000 glass negatives dating back to 1897." They have made a selection of these photos available for purchase as reprints, but they have also put all of the photos behind a copyright gate that requires anyone viewing the photos agree to a ridiculously large block of legalese:

All photographs in this gallery are the property of the Clinton County Historical Association and are protected by the Copyright Law of the United States (Title 17, United States Code) and by the Berne Convention. Reproduction, storage or transmittal by any means, of any image on this web site, whole or in part, is prohibited without express prior written permission. Prints purchased from this gallery may not be reproduced or scanned for any reason and may only be used for personal display. If you wish to publish or reproduce the materials in any physical or digital form or use them for any commercial purpose, including display or Web page use, you must obtain prior written permission from the Clinton County Historical Association.

Reader Luke T. Bush, who submitted the story, astutely asks: "I understand charging for the work of scanning and printing negs but can they claim copyright to prevent copying of the prints?" As ruled in Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191 (S.D.N.Y. 1999), exact photographic copies of works in the public domain cannot be copyrighted. So, the question then extends to whether or not those photos are in the public domain yet. The copyright is owned by the photographer and lasts for life plus 70 years. Since the photos in question were taken from 1901-1905, it is likely that many have already passed into the public domain.

Even if CCHA actually did own the copyright to the photos, they are unnecessarily hamstringing themselves by adding this needless "protection." Not only are the low-resolution scans on their site marred with a digital watermark, but hiding them behind their own particularly restrictive copyright gate also prevents the images from ever being included in a search engine. So, while CCHA has taken the admirable step to saving these photos from obscurity by scanning them, putting them behind this copyright gate effectively re-hides them.

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Filed Under: copyright, photography, public domain

56 Comments

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Anonymous Coward, 26 Apr 2010 @ 6:46pm

logic isnt your best suit sometimes. the gallery owns the images. they are the only ones as owners who can permit duplication. the duplicates would be by your own warped view a new transformative work, thus a nice new copyright. sort of ugly when you argue things from different ends when it suits you no?
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Anonymous Coward, 26 Apr 2010 @ 6:48pm

Re:
let correct this right away - dennis you need to talk to your boss the masnick he has argued the exact opposite direction.
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Anonymous Coward, 26 Apr 2010 @ 6:49pm

Re:
People can own culture?
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Anonymous Coward, 26 Apr 2010 @ 6:53pm

Re:
I know reading isn't your strong suit, so let me help.

"As ruled in Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191 (S.D.N.Y. 1999), exact photographic copies of works in the public domain cannot be copyrighted."
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vyvyan, 26 Apr 2010 @ 6:56pm

If memory serves me right, pre-1923 work is already in public domain in it was published.
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vyvyan, 26 Apr 2010 @ 6:57pm

Re: Re:
Umh, yeah. Where is Mike?
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Anonymous Coward, 26 Apr 2010 @ 6:57pm

Re: Re:
are they exact copies? no additions of logos, brands, indications, color correction or other? remember now the masnick has argued that a picture of a picture is a new work.
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sam, 26 Apr 2010 @ 7:00pm

anyone else notice that every time this blog runs a piece on copyright the first post in response is that of a paid astroturfer?
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Anonymous Coward, 26 Apr 2010 @ 7:07pm

Re:
They're not paid! They do it for free because they love intellectual property so much that they married it.

"Til death do us part . . . ."
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Anonymous Coward, 26 Apr 2010 @ 7:13pm

Re: Re: Re:
How silly of me to expect TAM the troll to actually go visit the site in question and see that they are in fact exact copies.

As for your claim...no, he hasn't. I won't even bother asking you to provide evidence for the claim, as you never do.
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amalyn, 26 Apr 2010 @ 7:16pm

these would not be 'exact' reproductions
Scanning glass negatives is not simple, nor an exact duplicate.

Silver, or any other light-sensitized metal, put onto glass, exists as layers of particles, rather than what would generally be perceived as close to continuous tonality. Density varies, meaning that depending on the scanner / camera / lighting used, the resulting 'scanned' image will differ wildly.

Additionally, there was likely a combination of multiple scan passes to assemble each image presented as a print.

Images of historical nature, being sold as prints -- generally, they really don't care about being found or indexed through a search engine. Prints of historical process images tend to be up-marketed: word-of-mouth, as well as general knowledge within the art community would be much more useful, rather than trying to attract via the web.

(We could very much argue the benefits of trying to market these prints to people in general, but would people in general care about the historical process that created the negatives? Probably not. If they wanted mass-market, then submission to Getty's historical images would make more sense. BUT. Generally, anyone curating and maintaining a collection of GLASS negatives is not looking for mass-marketing - they are preserving what are relatively fragile parts of photographic history, and print sales / fees for scanning and access tend to work toward maintaining a suitable place to store these physical objects, rather than scan/turf that some arts groups have found necessary when they no longer had the resources to store the physical originals in an archival-friendly manner)
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Anonymous Coward, 26 Apr 2010 @ 7:31pm

Copyright is the reason why these photos were buried in history to begin with only to have copyright re - put them behind a copyright wall once again. So works under copyright remain under copyright for so long that most of them effectively disappear and then someone eventually recovers SOME of that work and puts it under copyright AGAIN for another 95 years (or 70 plus the lifetime of the "artist"). Ridiculous. Had it not been for copyright these photos would be in the public domain and everyone would have had access to them a long time ago and they probably would have never disappeared to a point where practically no one has access to them.
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Anonymous Coward, 26 Apr 2010 @ 7:33pm

"So, while CCHA has taken the admirable step to saving these photos from obscurity by scanning them, putting them behind this copyright gate effectively re-hides them. "

Except this wouldn't even be necessary if we didn't have ridiculous anti copying laws.
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Anonymous Coward, 26 Apr 2010 @ 7:36pm

Re:
But anti-copying laws are needed because copying is so easy to do these days and without the anti-copying laws then all the authors would starve to death.
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Anonymous Coward, 26 Apr 2010 @ 7:39pm

Re: Re:
Yes, and 95 years or the lifetime of the artist + 70 years isn't long enough. All artists will starve unless we extend that by another 200 years.
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Anonymous Coward, 26 Apr 2010 @ 8:08pm

Re: Re: Re: Re:
hi mike. why dont you just log on and use your real name?
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Anonymous Coward, 26 Apr 2010 @ 8:13pm

Re: Re: Re: Re: Re:
Paranoid much?
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Anonymous Coward, 26 Apr 2010 @ 8:15pm

Re: Re: Re:
Just to be safe we should make it 2000 years.
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sam, 26 Apr 2010 @ 8:19pm

"hi mike. why dont you just log on and use your real name?"

whose mike? my name is samuel. sam greer? also i have put my name. your the one hiding behind the anonymous coward tags.
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not in a hurry, 26 Apr 2010 @ 8:22pm

Re: these would not be 'exact' reproductions
Wouldn't "exact reproduction" be an oxymoron ?
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not dead - yet, 26 Apr 2010 @ 8:24pm

Re: Re:
without the anti-copying laws then all the (dead) authors would stop creating new art
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sam, 26 Apr 2010 @ 8:42pm

Re: Re: Re:
did you miss the news story last week about a new study says copyright laws allow people to be lazy and NOT create.
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Anonymous Coward, 26 Apr 2010 @ 9:14pm

Re: Re: Re: Re: Re:
Hi TAM. Why don't you just log on and use your laughable pseudonym?
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Anonymous Coward, 26 Apr 2010 @ 9:19pm

Re: Re: Re: Re: Re: Re:
wouldnt you be shocked to find out this isnt tam or anyone like that. hi mr anonymous techdirt employee
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Anonymous Coward, 26 Apr 2010 @ 9:25pm

Re: Re: Re: Re: Re: Re: Re:
Wouldn't you be shocked if an asteroid destroyed Earth in the next 17 seconds!?

Hi TAM.
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Anonymous Coward, 26 Apr 2010 @ 9:43pm

Re: Re: Re: Re: Re: Re: Re:
Wait? How do you know who TAM is?
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David Sanger (profile), 26 Apr 2010 @ 9:45pm

Not registered
Well, the Clinton County Historical Association did not register the images with the Copyright Office.

Perhaps they are relying on contractual protection via the clickwrap agreement
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mike42 (profile), 26 Apr 2010 @ 9:49pm

Re: Re:
What in the hell are you talking about? Mike has never argued that exact copies of photographs receive a new copyright when moved to a new medium. He's argued the opposite numerous times, and the law (and common sense) agrees.

Another useless troll by another useless AC.
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Mike42 (profile), 26 Apr 2010 @ 10:06pm

Re: these would not be 'exact' reproductions
So, I can take a movie print, scan it with a different exposure than normal, post it online, and legally claim a copyright on it? Damn, I may have to quit my day job! I mean, after all, if that's all it takes to assume copyright, I'll be golden!

Sweat of the brow, good intentions and an altruistic rationale does not give you a copyright. I would have to argue that if their intent was historical preservation, they would put them online for distribution, happy that people would be able to freely enjoy them forever. Sadly, that does not seem to be the case.
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Richard (profile), 26 Apr 2010 @ 10:14pm

Written Permission
I assume the website contains a bit of writing, authorising you to store the image in your web-browsers cache, otherwise you'd be breaking the copyright they're claiming by storing it. Also I assume every company that owns a server or whatever that acts as a conduit for internet traffic has also either contacted CCHA for authorization to transmit those images, or has blocked their transmission. Unless I've missed something where they all get an "implied" authorization, despite the fact that they never personally visited the website in order to see that they weren't authorized?
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Nick, 26 Apr 2010 @ 10:22pm

Re: Not registered
I think David hit the real point here. When you go to the site and try to access any of the galleries you have to accept a really weird EULA/ToS agreement. The story that interests me most is not whether this is a bogus claim to copyright protection, but whether there is a contract being formed that essentially does away with the public domain status of these works (and the chilling effect that such a contract would have, even if legally unenforceable).

What happens to the world if everything gets slapped with such a restrictive agreement on the user? What then?
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Rose M. Welch (profile), 26 Apr 2010 @ 10:32pm

Re: these would not be 'exact' reproductions
But the post isn't knocking the fees - it's knocking the daunting legal text. Personally, I would think twice about making a purchase that requires a wall of legalese...
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Anonymous Coward, 26 Apr 2010 @ 10:47pm

Re: Re: Re: Re: Re: Re: Re: Re:
How do you now who mike is?
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The Baker, 26 Apr 2010 @ 11:24pm

Printroom Inc actually
If you look on the bottom pf the page, it is "copyrighted" by Printroom Inc. They are apparently the outfit that the historical society uses to supply the prints and supplies the webpage, look at the URL ... http://ccha.printroom.com/GHome_main.asp?domain_name=ccha. The historical society website url is a .org (http://www.clintoncountyhistorical.org/)
Searching other printroom pages gives the same basic copyright notice.
My guess that the historical society has no idea what copyright "protection" printroom is giving them, nor do they have any idea what rights Printroom is taking from them. Perhaps the Historical society is being duped by their vendor Printroom Inc.
There is more to this below the surface.
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Anonymous Coward, 26 Apr 2010 @ 11:32pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
http://www.techdirt.com/profile.php?u=mmasnick

It's not rocket science.
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David Sanger (profile), 26 Apr 2010 @ 11:42pm

Re: Printroom RE: Not registered
@TheBaker Of course the Printoom Inc. hasn't registered the images either

@Nick Indeed it would be interesting to know what they actually think the contract is. If the images are public domain then wouldn't a contract only be with the buyer of the print, not with anyone they gave or sold it to?
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David Sanger (profile), 27 Apr 2010 @ 12:14am

Supremacy Clause
There seems to be significant debate too as to whether or to what extent state law, e.g. a contract, would be preempted by federal copyright law and thus could not be used to establish new de facto intellectual property rights,
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Blatant Coward (profile), 27 Apr 2010 @ 12:39am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Does any one know what time it is?
Does adding a watermark make these original works?
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Dennis Yang (profile), 27 Apr 2010 @ 2:53am

Re: these would not be 'exact' reproductions
Sure, I recognize that these prints may not have mass appeal, but wouldn't it behoove the historical society to try and get some help to find the FEW people that would actually pay for the physical prints at all?

I mean, the images on the site are low resolution and already have a big watermark on them, so I just don't see why the big copyright warning is even necessary.

Printroom even has a warning for the copyright setting when you create a gallery:

"We recommend that you only enable the copyright statement if you have particular copyright concerns, as it complicates the purchasing process and may affect your sales."
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Richard (profile), 27 Apr 2010 @ 3:46am

Re: these would not be 'exact' reproductions
The criterion is simple - are you trying to make as exact a reproduction as possible. If so then you get no new copyright. (That is one of the criteria that the judge in the Bridgeman case used).

On your criterion there would be no copyright infringement in making an analogue copy - since it would always count as a new work!
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Capt Obvious, 27 Apr 2010 @ 5:11am

Re: Re:
[citation needed]
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not dead - yet, 27 Apr 2010 @ 5:16am

Re: Re: Re: Re:
No, but this story is about things created by people who are now long passed away.
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Lost and Happy, 27 Apr 2010 @ 6:27am

Authors are already.....
I agree that the authors need to eat, but wouldnt they already be long dead and buried in the case of the photos?
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Mike Brown, 27 Apr 2010 @ 7:04am

Copyright term
So, the question then extends to whether or not those photos are in the public domain yet. The copyright is owned by the photographer and lasts for life plus 70 years. Since the photos in question were taken from 1901-1905, it is likely that many have already passed into the public domain.
There's a bit of confusion here. Actually, the "life plus 70" copyright term applies automatically only to works created after 1978. For works created before 1978, you have to work through a complicated set of rules. See http://www.bpmlegal.com/copyterm.html for a complete chart.

For works created before 1978, you need to look at whether or not the work was ever published or if the copyright was registered. If either of these things happened before 1923, the work is in the public domain. If the work was not published or registered at all until the Historical Society did so, you'd need to look at when the publication was - if it was between 1978 and 2002, then the works will be under copyright until 2048. If the publication was after 2002, the post-1978 rules apply (life-plus-70 if the copyright owner was the photographer).

There's one more wrinkle - if the works were "works for hire" (i.e. by employees of a photographic company, as was often the case in those days), then instead of life-plus-70, copyright might last for the first of 95 years from publication or 120 years from creation, depending on the registration and publication details. So, potentially, if the photos were works for hire and the first publication was by the Historical Society after 2002 (unlikely, but possible) they still could be under copyright for another few years - 2017 to 2025 for works created between 1897 and 1905.

That said, the one thing which is certain is that unless they got an assignment of copyright from the owner of copyright (be that the photographer or his employer), the Historical Society does not own the copyright just because the own the physical negatives.

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Leviathant (profile), 27 Apr 2010 @ 8:05am

Don't forget Golan vs. Gonzales
Sometimes in this amazing country, a work's copyright can expire, letting it become part of the public domain, and then be un-public-domained through legal wrangling, a la Fritz Lang's Metropolis.

http://en.wikipedia.org/wiki/Golan_v._Gonzales
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nasch (profile), 27 Apr 2010 @ 8:25am

Re: Re:
"'Til death plus 70 years do us part..."

FTFY
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David Sanger (profile), 27 Apr 2010 @ 8:38am

Re: Don't forget Golan vs. Gonzales
@Levianthant yes but that is only for foreign works still under copyright in their country of origin, but previously not protected in the US under treaty obligations etc.
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ConceptJunkie (profile), 27 Apr 2010 @ 1:37pm

Re: Re: these would not be 'exact' reproductions
I think I get where you're coming from but any time you buy any software, you agree to a wall of legalese that makes this look like a tiny blurb.
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Anonymous Coward, 27 Apr 2010 @ 1:44pm

Re: Re: Re: Re:
Make it 20,000 years AND retroactive. That should really stir up the pot.
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Anonymous Coward, 27 Apr 2010 @ 4:59pm

Re: Re: Re: Re: Re:
Why don't we make it 2,000,000 years and radioactive!
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Anonymous Coward, 27 Apr 2010 @ 7:55pm

Re: Re: Re: Re: Re: Re:
Still not long enough because that would leave out the "right to profit" by dinosaurs and their offspring (Museums are making a decent living off of their bones after all). Better push it all the way back to 2,000,000,000 years, just to be fair. Please, think of the dinosaurs children.
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abc gum, 28 Apr 2010 @ 5:10am

Re: Re: Re: these would not be 'exact' reproductions
"any time you buy any software, you agree to a wall of legalese"

This is not correct, you are not allowed the opportunity to read the EULA prior to purchase. The EULA is presented to the buyer after having opened the packaging and installed some or all of the software.
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Anonymous, 23 Apr 2012 @ 9:19am

Re: Re:
Following Bridgeman v Corel to a logical conclusion, and also applying the holding in Schiffer Publishing v. Chronicle Books, it would seem that a faithful reproduction of a public domain photo will never be entitled to copyright protection but an inferior quality copying job that is a "visibly inaccurate representation(s)", citing Schiffer, will be entitled to copyright protection.

Of course, anything created in 1928 and subsequent, the year marking the creation of Mickey Mouse, will be entitled to perpetual copyright protection as the corporate masters of the mouse will lobby the American Congress to extend copyright protection whenever Mickey Mouse is in danger of falling into public domain.
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Dave, 17 Apr 2014 @ 4:08am

Re: Re:copyright gate
I have a photo I call The Horton Photo,Wyatt Earp. It has been researched and published in a major newspaper. I have created with my experts and time a complete report on this photo. It is from about 1896 and it is a tin type. There is no record my experts can find on this photo in the federal archives. I have a guy selling them on ebay, using my experts and copies off my photo. He indicates he got the photo in Calif. from the Fed. Archives. Photo does not exist there. He said, the copyright expired in 1926 and it is in the public domain. How do I protect this photo and my experts opinions from bootleggers like this? Dave
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Mark Toles, 11 Jul 2015 @ 11:44pm

Re: these would not be 'exact' reproductions
I understand exactly what you are saying about scans varying widely and involving quite a bit of adjustments and input that might well be highly creative and thus the thought is they render them copyrightable, but unless they have clearly distorted or artistically altered the images, things like tone and shadings aren't going to be enough. One could easily see changing the tone of a scan by a thousandth of a degree and claiming a new copyright, keeping it perpetually copyrighted. That is not going to fly. A basic copy of the image, despite any modest adjustments, is not copyrightable.
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Anne Strong, 17 Aug 2016 @ 7:51am

Copyright of historical images
The copyright of historical images is a complicated issue. At History Associates we often have to navigate the challenging process of obtaining copyright data while working to meet design demands for museum exhibits. Here's our methodology for handling historical images: https://www.historyassociates.com/resources/blog/image-acquisition-licensing/
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