Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, May 14, 2013

Can institutions claim a copyright to their collections?

Let's suppose that you are looking online for your ancestor and through a search on his or her name, you find a previously unknown photograph of the family, including the ancestor you were searching for. Since your ancestor died in 1910, you assume that the photo was taken some time prior to the date of death. Under U.S. Copyright law, since that photo was obviously published (i.e. made public in this case) any possible copyright claim would have long ago expired. However, there is a very prominent notice on the top of the webpage showing the copy of the photograph that says:
Copyright, 1999, ------ State Historical Society. All rights reserved. Reproduction, storage or transmittal of this work, or any part of it, in any form or by any means, for commercial purposes, is prohibited without prior authorization of the ------ State Historical Society. This work may be used for scholarly and other non-commercial use provided that the ------ State Historical Society is acknowledged as the creator and copyright holder.
 You are confused, how did the State Historical Society gain copyright ownership to your family photograph? What is more important, how did the State Historical Society become the creator of the works in its collection? Do you have to acknowledge the State Historical Society's claim if you copy the photo? What if you use the photo in a book about your family you intend to sell?

I must note that I did not make up the notice quoted above, I have merely removed the name of the state to avoid getting a nasty letter from the Society's attorney. Interestingly, the same photographs also have this additional notice prominently displayed on the same page:
The ------ Collection is the physical property of the ------ Historical Society, ------.  Literary rights, including copyright, may belong to the authors or their heirs and assigns. Please contact the Historical Society for information regarding specific use of this collection.
This type of notice appended to historical documents and photographs is not uncommon. Does the fact that the collection is the "physical property" of the Historical Society have any bearing on the issue of copyright ownership? If the copyrights, in fact and if they exist, "belong to the authors or their heirs and assigns" how did the Historical Society gain their "all rights reserved" status?

I am aware of several large collections where the copyright is claimed on documents that did not originate with the claimant. In fact, a copyright claim is personal property. A copyright can be bought and sold, leased and rented, just like any other item of personal property. But it is "personal" to the author or creator of the work. Copyright claims, although assignable, do not arise merely out of possession of the copyrighted work. If this were true, when you purchased a copyrighted book, you would assume some or all of the copyright protection given to the author.

This whole issue is basically out of control in our society. The length of the present copyright interest entirely defeats the whole purpose for establishing copyright protection in the first place, that is, to protect the author but also to ensure innovation and invention. Article One, Section Eight of the United States Constitution states, "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The reason for the provision was to promote progress. How is progress promoted by the length of the current copyright law? How is the "progress of science and the useful arts" promoted by institutions making unsupportable and illegal copyright claims?


  1. While this is true, many times the Terms of Use of the site on which you are viewing the images have usage restrictions that you agree to follow by accessing the sites. These Terms generally include that you agree that you cannot use the images. Many archives falsely claim copyright, but the terms of use that you agree to by using the site would be presumably enforceable. This is also true where you request images from institutions (the NYPL comes to mind).

    1. What is the basis for the enforcement of the "terms of use?" Is it their claim to a copyright? Could I put some "terms of use" in the front of a book I published that required my permission to read the book? Can "terms of use" be used as an extension of the copyright laws? I think not. Do you know of a law case that holds that this type of terms of use limitation is enforceable? There is a distinction here between invading the website and using public domain documents and photographs on the website.

  2. I think these historical societies do not seem to be able to make a distinction between ownership or stewardship and copyright. I own a lot of books and recorded materials--paid for them--but I don't own the copyright to any of them. I have no right to profit from them in any way except to enjoy them. I just house them and that's basically all the societies are doing in the case of materials with expired copyrights. But here they are selling their copies of photographs from the 19th Century, which is okay because anybody can. They are in the public domain. What is not okay that they are trying to "license" the use of others of these photos. In other words, trying to control all usage for their own profit of items. All the historical societies have these warnings in an attempt to convince the public that they have exclusive rights. Because they can. Nobody is stopping them from this sort of intimidation.

  3. I know this is an old thread, James, but it would have been worth noting the differences in Europe, and particularly in Britain, in respect of copyright where derivatives are concerned. originating in the "sweat of the brow" doctrine, the images of the original, and databases (or other indexes) of extracts, and probably even OCR'd text, fall into this category. While it is a clear variation of traditional copyright, it does not restrict access to or independent reproductions of the original, but to derivatives thereof where substantial effort was invested to produce them.