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.

Filed Under: alterations, copyright, flickr, photographs, public domain
Companies: summertown sun, yahoo

EU Court Says Simply Taking Someone's Photo Can Violate Their Civil Rights

from the who-did-what-now? dept

I'm definitely a big supporter of privacy rights, but sometimes it seems that big time privacy rights supporters go too far. The latest is that an EU court on human rights has declared that simply taking someone's photograph can be a violation of their privacy. In the past, laws in Europe have said that you can't necessarily publish a photo of someone without their permission, but merely taking the photo was allowed. No longer. In the press release about the decision, the court explained its reasoning:

"The Court reiterated that the concept of private life was a broad one which encompassed the right to identity. It stressed that a person's image revealed his or her unique characteristics and constituted one of the chief attributes of his or her personality. The Court added that effective protection of the right to control one's image presupposed, in the present circumstances, obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication."

Now, I could potentially understand such reasoning in private settings, but the statements above don't seem to limit the issue to private settings. The situation in the case itself also highlights what's a gray area between public and private. It involved a hospital that photographed a newborn baby -- as it does with all newborn babies. The parents protested and demanded the negatives, claiming that the photograph violated their baby's privacy rights -- and the court agreed. What's troubling is the implications of such a ruling, that you simply cannot photograph anyone without their official approval. This will almost certainly lead to new lawsuits, and even begins to raise some other questions. If it's a violation of someone's privacy rights to photograph them, at what point is it a violation of their rights just to see them?

Filed Under: civil rights, eu, photographs, privacy

Is Putting Every Frame Of A Movie Into A Photo Copyright Infringement? Should It Be?

from the questions,-questions,-questions dept

There's been a bit of buzz going around the blog/social media world over someone who made a photograph that shows a snapshot from every second of the movie The Big Lebowski (most of the posts about it erroneously claim that it's every frame of the movie, but a quick scan through the images shows that it's more like one frame every second -- i.e., approximately 1 frame out of every 30). What's interesting to me, though, is that the photo is listed under a Creative Commons license -- and I'm wondering if Universal Studios (NBC Universal) knows about this, and if it would freak out. It's difficult to see how this photo could possibly hurt the commercial viability of The Big Lebowski. It's quite clear that, if anything, it's a celebration of the movie.

And that's one of the key points of conflict that people run into with copyright these days. So many efforts by fans to celebrate, promote or otherwise share some aspect of a movie is often viewed as copyright infringement by the copyright holders. Hopefully, Universal chooses to overlook this creative endeavor -- or, even better, help promote it. But, given the way NBC Universal has reacted in the past, somehow that seems unlikely.

Filed Under: copyright, movies, photographs, the big lebowski
Companies: nbc universal

History Locked Up... Thanks To Copyright

from the too-bad dept

And here's yet another story of important content that could be put to use, unfortunately being totally locked up thanks to copyright. A few readers sent in the story of the Brooklyn Historical Society refusing to let someone putting together a book of photographs of the Canarsie section of Brooklyn use some old, historically relevant, photographs, because of fears over copyright. The photos in question were from well over 100 years ago, and no one has any idea who owns the copyright -- but rather than risk getting sued for infringement, the Historical Society has said no to using the photos in the book. This is the sort of situation that could be solved with orphan works legislation, but there's a vocal contingent of photographers who loudly are attempting to block that legislation, often falsely stating what the orphan works bill would actually allow, claiming that companies will "steal" their photos. So, instead, we sit around, unable to see important historic photos. I'm sure that's what the framers of the Constitution had in mind.

Filed Under: brooklyn, copyright, history, orphan works, photographs

Is A Photograph A Derivative Work Of The Object In The Photo?

from the you-would-hope-not dept

There's an interesting discussion going on over at William Patry's blog, questioning whether or not a photograph should be considered a "derivative work" of the object or objects in the photo. The courts appear to be somewhat split on this. The importance of this concerns whether or not the photograph itself can be covered by copyright -- and also whether or not the photograph can be considered infringement itself. If the photo is considered an unauthorized derivative work, then it's entirely possible that whoever holds the copyright on the object in the photo could claim that the photo itself is infringing. Remember, in the past there's been some concern about the legality of photographing copyrighted sculptures. A derivative work is supposed to be for something that "recast, transformed, or adapted" the original work, and is normally used for something like a translation of copyrighted material. However, does a photograph really recast, transform or adapt the object? Or is it an entirely separate work?

Filed Under: copyright, derivative works, photographs, william patry