Copyfraud

This page addresses a widespread and increasingly common problem, often perpetrated by publicly funded universities, libraries and museums.

I recently did some research about my ancestors. While searching the Internet, I found a photograph of a well known cousin who died in 1881. Since the photograph had to be at least 130 years old, I am quite sure any copyright of the image has long since expired and the image is now in the public domain, meaning that it is free to use by anyone without permission. (See my page on Copyrights for more information about copyright durations)

The photograph in question happened to be part of a collection of photographs now owned by the Denver Public Library. I do not know if the Library purchased the collection or if it was donated to them. Either way, the Denver Public Library may own the physical photograph, but it DOES NOT own the (expired) copyright and therefore has no authority to grant permissions, set conditions, or charge fees for the use of the image.

I wanted a high resolution copy of the image to accompany a story I was writing for publication in a magazine. The Denver Public Library website included instruction on how to order copies of the photograph. However, it also included a claim of copyright ownership, conditions for use, and "use fees" in addition to charges for making a copy of the photograph.

Specifically, the Denver Public Library website www.digital.denverlibrary.org states: (My emphasis underlined)

Copyright and Permissions

All images from the Denver Public Library collection are copyright © protected and may not be reproduced in any way without permission from the Denver Public Library. Commercial use of images is subject to service fees. We require that all images be credited to the Denver Public Library, Western History Collection. Please refer to the price list for commercial and private use, listed below.

Purchasing Procedures

All orders must be prepaid. All sales are final.
All responsibility regarding questions of copyright or invasion of privacy that may arise in the use of material that has been reproduced by the Denver Public Library must be assumed by the user.
The Denver Public Library gives no exclusive rights for the use of its material. Permission is granted for a one-time use only. Any subsequent use of an image requires the written permission of the Library and the payment of additional fees.
It is the responsibility of the user to credit the Denver Public Library. Proper credit must be given to the creator if known. The preferred citation is as follows: Denver Public Library, Western History Collection, Creator (if known), Call Number.
The Denver Public Library does not allow its images to be used out of context or modified in any way that affects the historical integrity of the image.
Special requests not specifically mentioned within the above procedures will be considered and subject to special agreements. We reserve the right to charge additional fees for items that pose unusual difficulty in scanning.
The Library requests, and is appreciative of receiving, a free copy of the item containing the material that is published or produced.
Discounts:
- Non-profit organizations are eligible for a 50% discount on commercial use fees. Proof of non-profit status is required prior to placing the order.
- A use fee of $10 per image will be charged to non-profit organizations reproducing images from the collection for non-commercial use such as scholarly journals, teaching tools, reports and display.
- Customers ordering more than 10 images at a time are eligible for a 50% discount on use fees only.

Use Fees Per Image (For quotes on larger publication runs please contact the Photo Sales Department)

Books, Guides, Brochures
0-5000 copies	$15.00
5001-10,000 copies	$35.00
10,001 -15,000 copies	$55.00
15,001-20,000 copies	$75.00
20,001-25,000 copies	$95.00
25,001-30,000 copies	$115.00
30,001-40,000 copies	$135.00
40,001-50,000 copies	$155.00
50,001-60,000 copies	$175.00
60,001-70,000 copies	$195.00

Serials Including Magazines, Newspapers and Newsletters
0-10,000 copies	$15.00
10, 001-20,000 copies	$30.00
20,001-30,000	$45.00
30,001-40,000 copies	$60.00
40, 001-50,000 copies	$75.00
50,001-60,000 copies	$90.00

Book Jackets and Magazine Covers
0-10,000 copies	$100.00
10, 001-20,000 copies	$150.00
20,001-30,000	$200.00
30,001-40,000 copies	$225.00
40, 001-50,000 copies	$250.00
50,001-60,000 copies	$275.00

Videotapes, DVDs, and CDs
0-1000 copies	$35.00
1001-2000 copies	$50.00
2001-3000 copies	$75.00
3001-4000 copies	$90.00
4001-5000 copies	$105.00
5001-8000 copies	$120.00

Motion Picture and Television
Non-commercial Broadcast (PBS)	$90.00
Commercial Broadcast	$180.00
Motion Picture	$180.00

Postcards, Posters, T-shirts, Calendars, Mouse Pads and/or Other Non-paper Items
0-500 copies	$20.00
501-1000 copies	$40.00
1001-1500 copies	$60.00
1501-2000 copies	$80.00
2001-2500 copies	$100.00
2501-3000 copies	$120.00
3001-3500 copies	$140.00
3501-4,000 copies	$160.00
4001-4500 copies	$180.00
4001-4500 copies	$190.00

Advertising or Display in Commercial Offices, Stores, Restaurants or Events
Display in commercial offices, stores, restaurants or events	$30.00
Advertising & Press Kits	$180.00

Internet - $25 per image per year

I have no objection to paying the requested $19 fee for making a copy of the photograph. I understand that the library has operating expenses to catalog, scan, and publish the photograph. They also charge for making prints or burning images to a CD ($5.00 for a $0.25 CD) and for postage.

I emailed the contact listed on the Denver Public Library website and explained that I wished to obtain a copy of the image for publication in a small non-profit magazine with a circulation of less than 10,000.

Ms. Coi E. Drummond-Gehrig, Digital Image Sales and Research, Denver Public Library, Western History/Genealogy responded via email with the following: (My emphasis underlined)

"I am attaching the photo order form for you to fill out. Just fax it back with credit card information or mail with a check. The costs associated with the image plus rights are: 19.00 for the image 5.00 for the CD 15.00 for the use 6.00 mailing. 45.00 grand total Thanks Coi"

I replied that I preferred having a high resolution copy sent to me by email rather than delivered on a CD. I also questioned why they would be charging $15 for "use" of a public domain image.

Ms. Coi E. Drummond-Gehrig replied: (My emphasis underlined)

"The images themselves are in the public domain. We've taken them and put them online to help maintain and archive our collection. This allows us to be able to scan and add addition images to the online collection. This provides access that normally a person would have had to fly into Denver and view the folders to see what we had. But even then we charged for images and permissions. Thanks Coi"

I again responded:

On 4/28/2011 at 11:30 AM, in message mike@cartercrafts.com wrote:

I understand a reasonable fee for the service you provide in making the
images available but on your website you claim copyright for public domain
images and further charge a license fee to use public domain images. In this
case, a $15 fee for the right to use an image for which you do not hold
copyright does not seem justified.

The courts have ruled that a copy of a public domain image does not qualify
for copyright because "There has been no independent creation, no
distinguishable variation from pre-existing works, nothing recognizably the
author's own contribution" and would thus create a perpetual copyright.

See: The Bridgeman Art Library, Ltd., Plaintiff, - versus - Corel
Corporation, et ano., Defendants.
http://www.law.harvard.edu/faculty/martin/art_law/bridgeman1.pdf

Mike

At this point, the matter was forwarded to James Rogers, Senior Librarian, Western History/Genealogy Dept., Denver Public Library. Mr. Rogers then replied with the following email: (My emphasis underlined)

From: James Rogers [mailto:Jrogers@denverlibrary.org]
Sent: Thursday, April 28, 2011 4:20 PM
To: Mike@cartercrafts.com
Cc: Coi Drummond-Gehrig; Jim Kroll
Subject: RE: Photo call number X-22157

Dear Mr. Carter,

I have read your concerns dealing with the copyright of DPL's digital images and wanted to address these.

You have by now read our copyright statement: All images from the Denver Public Library collection are copyright © protected and may not be reproduced in any way without permission from the Denver Public Library. Commercial use of images is subject to service fees. We require that all images be credited to the Denver Public Library, Western History Collection.

There are several reasons we have copyright on our images. The library owns the original images and they were either purchased or donated to the library. The images were then digitized. Because the original images were digitized, they are derivatives of the originals and thus they are not in the public domain.

The library charges a service fee for customers to use our images. This fee covers the cost of digitization, preservation and maintenance of our digital images. While the library cares for the images, they are actually owned by the City and County of Denver and its citizens. It is only fair that if you use our images for personal use or to make a profit that you give something back, thus the service fee.

We have communicated with and passed your concerns to the Denver City Attorney and feel we are on solid ground with our policy.

There is a serious problem here. First, once a copyright has expired and an image is in the public domain you cannot reinstate, renew, or extend the copyright nor claim a new copyright on a copy of the original image. Derivative works can only be copyrighted if something new has been added to the original work and even then only the new material can be copyrighted and not the original content. Secondly, since the Denver Public Library cannot legally claim copyright of the public domain image, it cannot set conditions or charge fees for the use of the image. THIS IS COPYFRAUD! It is also a rip-off by charging the public fees that the library is not entitled to.

From the U.S Copyright Office: http://www.copyright.gov/help/faq/faq-definitions.html
"A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. "

U.S. Copyright Office Circular 14: Derivative Works http://www.copyright.gov/circs/circ14.pdf

"To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself."

"The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. It does not extend to any preexisting material and does not imply a copyright in that material. One cannot extend the length of protection for a copyrighted work by creating a derivative work. A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work."

False Representation of Copyright: http://www.copyright.gov/title17/92chap5.html#506

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

I clearly explained all of this to Mr. Rogers at the Denver Public Library. I quoted the copyright law exactly and even provided links to the law on the government's U.S. Copyright Office website www.copyright.gov. I again made it clear that I was perfectly willing to pay a reasonable fee for the library's efforts in making a copy of the image and emailing it to me (even though I am sure it was already scanned and stored in high resolution and would only require the effort of somebody to email it) but I refused to pay a "use fee" or agree to conditions for use of a public domain image.

Mr. Rogers remains steadfast in his insistence that the Denver Public Library owns the copyright of the image and I must pay their "use" fees and agree to their conditions for use.

I wrote to the Denver city attorney and received no response.

I also wrote to the Denver Better Business Bureau and they did open a complaint case (Case#75145228). Jim Kroll, manger of the Western History /Genealogy Department of the Denver Public Library responded to the Better Business Bureau that the image in question was not in the public domain (false) and that I was wanting a high resolution copy of the image for free (false).

I have since found that Copyfraud is all too common of a practice at many libraries (public and universities) and many museums. Some such cases have been tried and the courts struck down the false claims of copyrights. See: The Bridgeman Art Library, Ltd., Plaintiff, - versus - Corel Corporation, et ano., Defendants. http://www.law.harvard.edu/faculty/martin/art_law/bridgeman1.pdf . Google "copyfraud" and you will find many references to this illegal practice.

The problem is growing as large retail websites are committing the same frauds with public domain books, music and other works of art. For example, some large online retailers are making digital e-book copies of public domain works and then claiming copyrights on them, effectively taking them OUT of the public domain.

Unfortunately, even though copyfraud is clearly illegal under the federal copyright laws, nobody is enforcing the law and the law itself provides no specific penalties for violation except for fines of up to $2,500 for "notice of copyright or words of the same purport that such person knows to be false". So, these institutions continue to practice copyfraud, effectively taking historic documents and images OUT of the public domain illegally and charging the public for using property that they do not own and have no right to charge. They also continue to create conditions for the use public domain materials when they have no authority or right to do so. This is not only a rip-off but it stifles historic research and documentation and defeats the whole purpose of public domain.

Many of these institutions that are perpetrating copyfraud are publicly funded institutions. They are using your tax dollars to operate and then ripping you off by charging you fees for public domain materials. They are claiming copyrights on public domain materials when it is clearly illegal to do so.

Sooner or later someone is bound to file a class action lawsuit against one of these libraries and if the court finds them guilty they may be required to refund ALL of the "use" fees that they have ever charged anyone for use of public domain images and may further be penalized for illegally claiming copyrights and creating conditions for the use of public domain materials. When such a case is filed, count me in!

Of course, even if a library was forced to refund their ill-gotten gains (could easily be millions of dollars), it would come out of your tax dollars anyway. So again you would be ripped off.

To be fair, I have seen the website of at least one university library that has gotten the message or at least understands the law and clearly states they they do not charge use fees for public domain materials. Cornell University Library's website http://cdl.library.cornell.edu/guidelines.html states "Much of the material reproduced or distributed by Cornell University Library is believed to have no known U.S. copyright or other restrictions. The Library does not charge for permission to use such material and does not grant or deny permission to publish or otherwise distribute public domain material in its collections."

Copyfraud Related Links:

http://blog.grossmeier.net/2009/03/19/copyfraud/

http://www.theregister.co.uk/2009/06/26/copyfraud/page3.html

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244

http://englishhistory.net/tudor/art.html

Copyfraud!

Copyright and Permissions

Purchasing Procedures