Photography and Public Domain: Part 1

The term, "Public Domain" has been a recurring theme in the press these days, and the issue (and all it touches) is rather complex. And, as this article will illustrate, it can affect a great many in the realm of copyright and intellectual property, which by extension, has profound economic consequences.

As if the topic weren't complex enough, photography shakes things up even more because of its nature as being both an art form and a kind of "photocopy machine." Is a particular photo of another work merely a "copy", or is it a unique copyrightable work all its own?

That question is at the core of many disputes and misunderstandings, and depending on which side of the fence a given court judgment may go, it can establish precedents for how other copyright cases are judged.

Mix it all up and you get a Mentos-and-Diet-Coke effect in the flogosphere, where bloggers oversimplify positions, skew facts, misrepresent opponents, and pontificate their opinions to rally their core supporters.

Needless to say, there's a lot at stake. So, when reading articles about the matters, it's important to understand certain basic principles.

A recent case that's made it to the mainstream press illustrates how all this materializes: Britain's National Portrait Gallery (NPG) is threatening to sue Wikipedia for copyright infringement for not taking down 3,000 high-resolution photographs that Derrick Coetzee downloaded from the NPG website, and placed on Wikipedia to serve as head shots for important historical figures. The works of art are very old paintings, which are in the Public Domain. But the photos of the paintings are new, and, as the NPG claims, are copyrightable works.

The news made headlines, and the flogosphere took over. As a benign example, there's this quote in a UK photo blog supporting the NPG: "Owners of Public Domain images are in general under no obligation to put them on the web, and (they) have every right to charge a fee for supplying files, and to impose a suitable license on their use."

Another blogger added: I'm a British taxpayer and I'm delighted by all this. Don't we, the taxpayer, own the images?

First, no one owns works that are in the Public Domain. (By definition, the term means "not subject to copyright.") The authors' misunderstandings appear understandable--their statements assume that because the paintings are in the Public Domain, so are the photos. Or because the institution may be funded by the government, the photos are PD.

But neither assumption is true.

It'd be one thing if these blog comments were isolated. But, none of the photo blogs I've read fully address the central question of uniqueness. Instead, they use these similarly incorrect assumptions for a purpose: to suggest that photographers' photos could be stolen the same way, and therefore this event "harms photographers."

No one disputes that the paintings are in the public domain. It's the status of the photos that's in question. And you can't tie the two together quite so simply because there is a difference between a photo itself and what it's a picture of. A photo is a derivative work from the original, and it's true that it may not be distinct enough to have its own copyright status. But that in itself is not a threat. But it is the point of discussion. As far as copyright law is concerned, if it's unique enough, a photo could be protected by its own copyright status (so long as certain other conditions are met). If not, the photo is considered "identical" to the original work, in which case, it inherits the same copyright status -- whether that's its owner, or "the Public Domain."

What people should be addressing are these two questions: What constitutes originality? and How can this affect copyright more broadly?

Let's begin with a simple example: Say you took a photo of a hilly landscape; you own the copyright to it. Now let's say you licensed it to someone who then used Photoshop to add a car and a waterfall into the image. That person created a derivative work from your original photo. Under copyright law, he own the rights to his rendering of the photo, and he can do whatever he wants with it--provided it's permitted under the license terms you granted to him. (Most of the time, these terms indicate that he can publish it for his own use, but not grant the use of the photo to third parties.)

The pivotal point to consider here is that copyright does not transfer from original works to derivative works, or back again. Just as he has no right to redistribute his version work to others, you have no rights to redistribute his version of your photo either. This, even though you own the original photo. His photo is unique from yours and has its own copyright protection.

Now, let's consider "Public Domain" in exactly the same scenario: If the same guy used a photo that's in the Public Domain, he has still created a derivative work, just like before. And, like before, he owns the copyright to his newly created derivative work. That is, he controls the licensing rights to it, and consequently, can prevent others from either using it or relicensing it. If someone wanted to use his derivative work, they'd have to license it from him. Otherwise, it's copyright infringement.

By the same token, he has no claim to the original work just because he owns the copyright to his derivative work. That is, other people can still use (and redistribute) the original work (not his rendering).

In short, the two are solely independent--the status of one doesn't affect the status of the other.

Now let's put it into context of the NPG and Wikipedia case:

1. The Paintings are in the Public Domain.
2. The photos are derivative works.
3. Wikipedia used the photos.
4. Q: Did Wikipedia infringe?

You'd think that they did infringe because of how I set up all this: I suggested that the "derivative works" are unique from the originals, and therefore, separately copyrightable works. And, that's how misinformation gets disseminated, especially if a commentator has a particular bias he wants his readers to believe.

However, recall that there's still a factor of originality. The question before a court is whether the photos of the paintings are "distinct" from the original paintings. If so, then the photos may be copyrightable--hence, not in the Public Domain. (Wikipedia infringed.) If they are not distinct, they are considered the same as the original works, and are therefore in the public domain. (Wikipedia did not infringe.)

What's your view?

Many people think that because paintings are uniquely different art forms than photographs, each is uniquely different. But there's also the argument that photos can be merely "photocopies" of other works, which is not a form of originality.

Now consider this example:

In 2007, Getty Images created high-res scans of negatives of famous public domain photos, and then licensed those images in their stock library. When people started using those images without licensing them, Getty sued them for copyright infringement. Their claim is that, as part of the scanning process, they removed dust and scratches, thereby creating derivative works that would produce much better prints than the originals would. Therefore, Getty's scans are unique from the originals, making them separately copyrightable. Do you agree? Or are they the same as the originals, causing them to inherit their Public Domain status?

Needless to say, this story got a lot of attention in the flogosophere--meaning that most people ripped a new breathing hole into Getty. Now we're in the Mentos-and-Diet-Coke territory.

An example is in this article titled, "Getty Claiming Copyright to National Archives Images and Selling Them."

The bias is evident in the headline itself. Here, the commentators focus almost entirely on whether the original works are in the Public Domain, giving little credence or attention to the fact that Getty's edits could constitute "uniqueness." The article is also highly slanted by falsifying Getty's claim: it leads the reader to believe that Getty is claiming copyright to the images in the National Archives. But that's note true. Getty is only claiming that their scans and subsequent alterations are protectable derivative works. That is the question up for debate, and it's a legitimate one. It's entirely irrelevant that the original photos are Public Domain, other than to note that if the courts decide that the scans are not original enough, then they would inherit the status of the Public Domain works.

I'm not weighing in on how the courts would decide in such a case, though no one has yet to challenge their claim in court. I'm just observing that what should have been the topic of debate, wasn't. And as a consequence to the slanted portrayal of the company and an intentional perpetuation of misinformation, most photographers feel that Getty's actions are more than just unethical--it could happen to them. That is, if Getty gets away with this, and if Wikipedia gets away with that, then any photographers' images are next: that someone could make some kind of "frivolous photocopy" and then disseminate it without compensating the photographer.

This is nonsense, and such fears are based on false assumptions on two levels. First, both cases here involve "Public Domain" works, not works whose copyrights are still owned by the photographer. Second, the fallacy that a "photocopy" is easy to justify as a unique, protectable work--one in which an infringer can use to justify copyright infringement.

As the reader should have already learned from this article, even if a photo were deemed to be unique from the original, then it doesn't mean that it can be re-licensed or redistributed. It only means that the new work's restrictions are limited to those permitted by the owner of the original: if the original is in Public Domain, there is no owner, so the derivative work can be used for any purpose; but if it's owned by someone, that owner must explicitly grant usage terms to the licensee that created the derivative work. Unless you declared your own photos are in the public domain (which is not easily done, a topic I'll address in my next blog post), no one can just make derivative works of your photos and do what they like.

Determining whether a derivative work is unique is not easy to analyze, let alone decide. I dedicate almost an entire chapter to it in my book on model releases. In the section on Property Releases, I discuss the case of Bridgeman Art Library v. Corel Corp, which is probably most similar to the NPG v. Wikipedia event, and which illustrates why the analysis is not so cut and dry. The first paragraph on that page above summarizes the case in a manner that initially appears (to the casual reader) that it's a done decision:

On November 13, 1998, this Court granted defendant's motion for summary judgment dismissing plaintiff's copyright infringement claim on the alternative grounds that the allegedly infringed works -- color transparencies of paintings which themselves are in the public domain -- were not original and therefore not permissible subjects of valid copyright and, in any case, were not infringed. It applied United Kingdom law in determining whether plaintiff's transparencies were copyrightable. The Court noted, however, that it would have reached the same result under United States law.

Yet, subsequent events (described by the paragraphs that follow), show there is a great deal of debate on various matters that put the whole issue into question. The details of which are not relevant to this article.

The simple fact that so many in a position of knowledge can disagree so strongly is also reflective of the fact that many court decisions are often split, even among the judges who decide these cases. The reality is that drawing simple conclusions on such matters lead to incorrect decisions on matters of commerce and policy. And no one does themselves (or the industry) any good by focusing on matters unrelated to the pivotal questions at hand.

In Part 2, I will discuss the matter of Public Domain more directly, and why photography is the odd and unusual case, distinctly different from all other copyrightable art forms.