Banning Photography

In a recent article in the Imaging Resource Newsletter,  the author, Steve Meltzer, asks the quiestion, "Does flash photography really damage art? The persistence of a myth." This article caught my eye because of a planned outing to a local display garden where the "Photography Policy" imposes a $100 fee for taking pictures in the garden. A similar policy exists at another botanical garden we frequently visit. I am aware of many museums and art galleries where photography is subject to an outright ban.

I cannot, for the life of me, imagine what kind of interest these gardens claim in their plants and flowers? It is obvious that banning photography is nothing more or less than an attempt to increase revenue. I can imagine some circumstances that might warrant outright bans on photography, but outdoor gardens, open to the public, do not fall into that category.

This same issue regularly confronts genealogists. Take for example the New York Public Library. Here is an excerpt from their Terms and Conditions:

Proprietary Rights
As between you and NYPL, NYPL owns, solely and exclusively, all rights, title and interest in and to the NYPL Websites, all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, software, etc.), code, data and materials thereon, the look and feel, design and organization of the NYPL Websites, and the compilation of the content, code, data and materials on such websites, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein.  Your use of the NYPL Websites does not grant to you ownership of any content, code, data or materials you may access on these websites.

Does this really mean that the New York Public Library claims to own all right, title and interest to all of the books, photographs and other materials in their collection? How did the library obtain such a vast interest in the world's intellectual property? My best guess is that the attorney who wrote this ridiculous statement, never used a public library. Actually, this statement is a sad commentary on the state of affairs of intellectual property rights and property rights in general. It is in exactly the same vein that the gardens claim ownership to photographs of their plants.

What is more interesting about both the gardens' and the library's position is that the claims in all cases, are patently false and at the very least, fraudulent. For example, later on in the New York Public Library's Terms and Conditions is the following:

1.  Low Resolution Files (Only Non-Commercial Uses Allowed).  Materials downloaded from the NYPL Websites may only be used for personal, educational, or research purposes.  They may not be used for commercial purposes. 
2.  High Resolution Files (All Uses Allowed, Including Commercial Uses).  High resolution digital files of photos in the Library’s Digital Gallery are available for editorial and commercial use for a reproduction fee.  For more information, please go to: www.nypl.org/permissions. 

 Reading on in the Terms and Conditions it is evident that what is intended is that the Library does not want to get into the position of violating copyright law. But they are still charging a "reproduction fee" for downloading documents they do not own and which, in many cases, are clearly in the public domain, for example, photographs taken in the 1800s in the United States. It is the law in the United States that once a work is in the public domain, you cannot originate a copyright interest in the work buy mere possession or ownership.

What is at the heart of all of these issues are claims of ownership and control. The real question is who owns the public. In all of the cases, the putative owners do have sizable investments in the gardens and libraries. Neither would exist unless someone paid for their creation and upkeep. I have no problem with paying a use or entrance fee to a park or garden. I also have no problem paying taxes to support libraries, what I do question is when these entities go beyond providing a service and claims ownership.

If I create a work, I can claim a copyright interest. But, if I plant a tree in my front yard, can I stop people from taking a picture of the tree? Do I own the copy right to an image of a tree, I did not take?