Tuesday, May 22, 2007

Getty Claiming Copyright to National Archives Images and Selling Them

By Bob Shell

It seems that Getty Images learned a few years ago that they could buy 4x5 negatives of images from the US National Archives for $5 each. They bought thousands. Now they are selling these same images through their stock agency and claiming copyright on them. The vast majority of the images in the National Archives were taken by government employees and are public domain.

As public domain images, these images belong to us, the U.S. public. Getty, or anyone else, has absolutely no right to claim copyright to these images and sell them.

We need to spread the word on this, and any of Getty's customers who have paid to license such images should demand an immediate and full refund.

Posted by: BOB SHELL

Featured Comment by Morven: "It's unfortunately very common for people to claim control over works that are actually in the public domain.

"Many of them base their 'claim' on the legal theory that lost in the well-known case of Bridgeman vs. Corel, in which it was reaffirmed that U.S. copyright law requires at least a minimal level of creativity.

"They assume that the act of scanning or photographing the public-domain original creates a derivative work which can itself be copyrighted, even though the original cannot. This is what Bridgeman vs. Corel explicitly denied, based on the Feist vs. Rural case (in which it was established that a telephone directory could not be copyrighted, for similar reasons). Because Bridgeman vs. Corel was never challenged in appeals court, they argue that its opinion is not binding and that the law might turn out different—however, it's been eight years and nobody in the industry has been foolish enough to risk finding out for sure that their claims are groundless.

"In many places outside the U.S., no creativity at all is required to establish new copyright; thus a simple scan or photocopy of a public domain work creates new copyright and this kind of scam is completely legal.

"In this case, even if Getty et al. were correct about U.S. copyright law, it would only apply to images copied from their copy of the work. This is, however, the way that many museums, art galleries etc. make their money—by restricting access to public domain works and establishing themselves as the gatekeeper to 'legal' copies.

"Because Bridgeman vs. Corel appears to be a good reading of U.S. law, museums probably can't enforce copyright claims on photos and scans of public domain works, though they can still sue the original licensee under contract law if they allow any copies of the public domain artwork to get 'free.'

"Outside the U.S., though, they can lock up public domain works forever."

Featured Comment by Carolyn E. Wright, Esq.: "Has Getty taken the image down? Nothing came up on the link or a search on the photo #.

"Generally, copyright protection is not available for 'any work of the United States Government.' (17 U.S.C. Section 105.) Any work that is 'prepared by an officer or employee of the United States Government as a part of that person's official duties' constitutes a 'work of the United States Government.' (17 U.S.C. Section 101.) Those works fall into the public domain.

"Sometimes, however, copyrighted works are created by non-government personnnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The 'government works exception' then allows the federal government to hold the copyrights for those works transferred to it by assignment. Some have argued that the government is using this exception unfairly as a way to circumvent the copyright law. The government works exception has been used to prevent the copying or creation of derivative works from such varied items as a film series on early Supreme Court cases and the Sacagawea coin. Recently, The Vietnam Women’s Memorial Foundation, Inc. made claims to the Vietnam Women’s Memorial, a bronze sculpture created by Glenna Goodacre of Sante Fe.

"The Government Works Exception would not apply to this case. However, since Getty bought the negatives, it can sell the reprints based on the hi-res scan and it does not have to give the negatives to others for them to make copies. Having the negatives does not impart a transfer of the copyright. But Getty cannot prevent others from copying the photo if they can make reproductions from other sources."

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