Can I Reproduce Images From Crystal Bridges Museum?

Dear Rich: I live near Crystal Bridges, America's newest art museum. Crystal Bridges is the brain child of Wal-Mart Heiress, Alice Walton and is a billion dollar museum. We here in Northwest Arkansas are so excited to have access, free access in fact, since the museum has been given an endowment by Wal-Mart that will allow the non profit museum to be forever free to the public, to see great American art from colonial times to the present. Many of these artworks are early works (pre 1923) and are part of the public domain. I have a new website I’m developing for public domain images. Crystal Bridges allows photographs to be taken of the art as long as a tripod or flash is not used. However, their photography policy states that photos of the art are only to be used for personal use. I take this to mean that they can not be used on my site which shares images with the whole wide web world. Am I correct in my assumption that they don’t have the right to restrict the use of my photographs of their public domain artworks? I am not trying to claim copyright of the photographs, since they will be merely reproductions of public domain works. Whether you can reproduce imagery that's in the public domain really depends on one thing: Did you enter into an agreement with the museum not to reproduce the images? You're probably thinking, "I didn't enter into any agreements with Crystal Bridges." But obtaining an admission ticket, if the ticket contains certain terms and conditions, may qualify as the type of agreement we're talking about. This may seem incredibly creepy -- to condition admission into the museum based on your promise not to reproduce public domain imagery -- but it's not uncommon in the copyright world and these so-called licenses are generally enforceable. Here's what public domain expert Steve Fishman has to say about the practice in his excellent public domain guide.

Many copyright experts believe that licensesimposing copyright-like restriction on howthe public may use public domain materialsshould be legally unenforceable. This isbecausethe federal copyright law preempts(overrides) state contract law and preventspeople from using contracts to create theirown private copyrights. Moreover, thereare sound policy reasons for holding suchlicenserestrictions unenforceable—theirwidespread use diminishes the public’saccessto the public domain.However, almost all courts have ignoredthe experts and enforced these licenses. 

What's a valid license? To have a valid license, you and the museum must assent to the terms and conditions, typically at the time when you enter. If the admission ticket contains no restrictive provisions and you never assented knowingly to such conditions, there probably is no license in place. For example, it's unlikely that an after-the-fact assertion of rights -- a sign on the way out of the museum that tells you that you cannot reproduce the imagery --  is legally enforceable as a contractual license.
What about the Crystal Bridges website? Each page of images at the Crystal Bridges website contains the statement:

Works of art in Crystal Bridges' collection are protected by copyright and may not be used without permission. For more information visit Rights and Reproductions. 

That sounds foreboding but we're not sure that statement creates a binding license. It reminds us more of a tip jar, left in view in the hopes that its presence will trigger a hoped-for result. The museum would have a much stronger argument that its terms and conditions are binding if the user had to assent to these terms and conditions -- that is, click a "Yes, I Agree" button to access the works. The fact that the site includes "copyrighted" photographs of public domain artworks also doesn't affect your ability to copy and reproduce that artwork. Courts have held that "slavish copying" of public domain works does not make the photographs protectible under copyright law. Although we're not a betting blog, if we had to bet, we'd place our money on the fact that currently public domain images at the site can be copied and reproduced without permission.
One last thing. Just because a painting was created before 1923 doesn't mean it's in the public domain. It must have been published before 1923. You may be surprised to learn that displaying a painting in a museum, for example, does not amount to publication. Publication (scroll down) refers to reproduction of the image, for example in a magazine, post card, or book.  To learn more about these tricky public domain rules, check out Fishman's tome.
One other last thing. We're not encouraging you to get chased by the museum and we appreciate the fact that great art is being made available to the masses at no charge. But is it really free? The driving force behind these efforts to restrict reproduction is a desire to jack up gift shop sales and generate licensing revenue. We hope the museum rethinks its desire to reclaim and restrict rights to artwork that our government has designated to be freely available to the public.

Wants to Use Historical Photos in Book

Dear Rich,I have photos I want to use for a book I am writing. The photos were given to me by the photographers. As far as I know these photographs were never published. They photos were taken in various years including 1914, 1924, and 1965. The photographers are all now deceased. However, the people who gave me the photos were informed that I was writing a book about local history and were going to use the photos for research. Can I use these photos in my book? Do I need to try to contact the descendants of the photographers in order to get permission or can I just credit the source of the photographs? I also want to use a photo I found in a history book. The photo is a pre 1923 portrait of a local man. The caption for the photo reads “Courtesy of William B. Secrest, Fresno, California.” Secrest is the author of the book and owns the original photograph. Do I need to track down William Secrest or can I use the photo without permission since it is pre 1923? The history book was published in 2002. I would of course appropriately cite the photograph. We think you'll be okay to use all of the photos described, but it gets a little complicated.
The 1914, 1924, and 1965 photos. If the photos were never published and the photographers died before 1941, the works are in the public domain (Here's the official explanation). Otherwise, the unpublished photos will not become public domain until the author has been dead for 70 years. (Based on this rule, the 1965 photo could not be in the public domain.) Even though your one or more of your uses is likely to be unauthorized -- and an infringement --  we think that you will have a strong fair use argument, and we also think that the likelihood that the descendants of the photographer will learn of your use (or care) is slim. A commercial publisher may require that you indemnify the publisher if there is a problem. You may want to consult an attorney at that point.
As for the pre-1923 portrait. If the pre-1923 portrait was first published with authorization before 1923 it's in the public domain and you're free to use it. If it was first published after 1922 but before 1964, the photo is in the public domain if it wasn't renewed (and most were not). If the first publication was in 2002, and the author died before 1941, it is also in the public domain. (See, we told you it was complicated). As for the prolific California historian William B. Secrest, we think -- and we could be wrong -- that he owns the photo and lent it for use in the book. The "courtesy" he has extended is that he provided access to the photographic print. Was there a copyright notice associated with the publication in the 2002 book? That could also be indicative, though not decisive as to the photo's copyright status.

Can We Use 1920s Quotes from New York Times?

Dear Rich Staff Member Is Interviewed
for Saturday Morning Today Show.

Dear Rich: In a book I am writing I have used several lengthy quotes from news articles from the New York Times dated in 1921, 1922, and 1923. Actually, what I am using is the NYT quoting some individuals--I am not actually quoting the NYT, if this constitutes a difference. If published, I doubt that the book will be a commercial blockbuster. Am I protected by 'fair use' laws using material from the NYT that was published before 1923? The Dear Rich Staff chose your question for Thursday because that's the day we get the Nielsen sales numbers from Author Central at Amazon. What a sad day that has become. And because we're so depressed, we look for questions that we think won't take much time to answer. So the short answer to your question would be yes, you can use any authorized pre-1923 publication in the U.S. (because it's in the public domain). The quotation aspect --  that is whether an interviewee's statements become part of the intervier's copyright -- is a more complex subject and we think this article does a great job of summarizing this prickly issue.

Using Text of Operas ... in Paintings

Dear Rich (and Dear Rich Staff): I have created painted works of art with oil on canvas and water color marker on paper using the text of public domain operas and plays in such a way that they are no longer readable as text. The full text is still there but, it has been over written in a variety of colors such that one could not actually gain any context or meaning from trying to read the painting as a copy of the opera or play. I judge that this as fair use and should be able to sell my work without consequence.Do I need to get permission to use copyrighted work that has been similarly obscured for this purpose if I intend to sell the unique painting I have created? Just an FYI, but you state you're using the text of public domain operas. If the text of the opera is in the public domain, there's no need for a fair use argument -- you can do whatever you want with it. As for your question about the use of copyrighted works there are two ways that could play:

• If you purchased the text of the opera -- for example, in sheet music form or in a book -- and you are painting on the pages of text (or incorporating them a collage), you won't need permission. You can probably justify that under the first sale doctrine. 
• If you are reproducing the text in a painting, we think you can probably make a strong fair use argument because you are using a small portion of the opera's text, you are not competing with or depriving the copyright owners of commercial gain, and based on your description, your use appears to be transformative --  that is you're making a new statement. if the words are obscured so that their meaning cannot be ascertained, we're not even sure you've infringed as your artwork no longer would be substantially similar to the opera text. Check out fair use rules before proceeding.   

.MIL Websites: Public Domain?

Gassed by John Singer Sargent, 1918

Dear Rich: yesterday you wrote about a website that you characterized as public domain because it was part of the U.S. military. Does that mean that every website that ends with .mil is public domain and material can be used freely? Ahhh ... Our previous blog never said that the website itself was public domain, only that some of the material at the site was public domain. When a website ends with .mil, you can be sure of only one thing: the Department of Defense has certified that the site is associated with the U.S. Military. The .mil domain is known as a sponsored top level domain which means that only those parties that have been cleared by a certifying organization - in this case, to the DoD -  can use it. Other 'certified' domains include .gov, .edu, .aero, .museum, and .coop.

Why Can't We Use Military History Photos in Book?

Dear Rich: We publish ebooks for the Amazon Kindle and other ebook devices and frequently use U.S. government material for our works. We are very clear on what to use (e.g. no contractors work) and where to distribute it. But one thing appears very strange to me. How can the U.S. government say that the information on a certain .gov or .mil website is public but at the same time restrict commercial usage? To give you an example kindly check this site that offers military and historical texts worked out by U.S. government officials and not registered at the Copyright Office (we checked that already). From my understanding - and that's true for Germany - if a "thing" is public domain you are free to do with it whatever you want, give it away of sell it, make derivatives etc. etc. Can you shed some light on this? According to the CMH site:

"Unless otherwise noted, information presented on CMH Online is considered public information and may be distributed or copied for non-commerical purposes. Use of appropriate byline/photo/image credits is requested. If copyrighted or permission restricted materials are posted on CMH Online, the appropriate credit is given. Visitors wishing to repost or use such materials for their own projects should make separate arrangements for permission with the owner."

In other words, the site claims to sift out those works that are under copyright by labeling them with a credit. Everything unlabeled presumably is in the public domain. Assuming you can trust the site's filtering of material, then, as the Supreme Court has stated, you can do anything you want with those materials, with or without attribution to the author.
By the way, although works prepared by federal government employees are in the public domain, you may be surprised to learn that the U.S. government -- though it rarely exercises the right -- is legally entitled to claim copyright outside the U.S. (see page 59 of link).
P.S. The licensing dilemma. Finally -- and this doesn't seem to be an issue at the CHM site --  we're always concerned about the trend to license public domain material. For example, if you check out the terms for this Department of Defense site, you'll see that some restrictions have been placed on use of U.S. government imagery. That claim is made on the basis of a license --  that is, you agree that as a condition of using the website, you will abide by the rules regarding photo use. Generally such licenses are only effective if the user must click to accept or demonstrate some action taken to indicate assent.
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Pounds and Inches: Part 2

I am interested in translating the book "Pounds and Inches" by Dr. A.T.W. Simeons.I was wondering if you would be able to tell me what paths I would need to take to goabout checking its copyright issues. For eg. Do I need to be clear on the copyright issue towrite a translation of the book? What if I were to add comments on certain parts to make it easier for the reader to understandcertain content?Can you foresee anything else in such a task that I would have to be aware of legally?I would be deeply grateful for any information, that you could assist me with. We thought Dr. Simeon's name sounded familiar and that's because nine months ago, another one of our readers had a similar query. (See our nuanced response.) Basically, his works would still be protected under copyright but apparently his estate (or successors) are not enforcing copyright. If you add original comments to Dr. Simeon's work, you would be able to stop others from copying your original text, but of course, you could not stop the copying of Dr. Simeon's text.

Wants to Dramatize Works of Persecuted Russian

Dear Rich: I have written a play in which I use the works of a Russian writer (in my translation)named Daniil Kharms (1905-1942). He wrote very short absurdist works, one-paragraph stories and the like, so I actually include several works in their entirety in the playscript. None of these works were published during his lifetime. (During his lifetime he only published two poems, plus many works for children, none of which I'm using.) I want to send the script for the play around to theaters without any questions about permissions hanging over it. I've looked at the Library of Congress website but question the value of ordering a search for so many short works. Kharms lived and died in Russia. (He died in a Leningrad prison during the siege of Leningrad. A friend hid and preserved his manuscripts.) He had no children; his wife died abroad in the late 1990s or early 2000s. There are various collections of his stories in English translation dating from the 1960s to the 1990s (on the copyright page of which, copyright notice is given for the translations; but not for the originals). There were two different Russian collections of Kharms's stories published in Germany in 1974 and 1978. In Russia itself, most or all of these works were not published until the late 1980s under Gorbachev. There is a "Complete Collected Works" in Russian which came out in 1998. Thanks for introducing us to the work of Mr. Kharms. We've reviewed the copyright notices for a few of the Kharms translations and can confirm that the copyright claims are only made to the translations and that there is no mention of a Kharms copyright or a license from anyone claiming to be the Kharms estate. For example, this copyright page from a British collection (Click Search Inside This Book and choose the copyright page) attributes authorship to Kharms, but that's all, apparently. For these reasons, we believe that currently Kharms' work qualifies as an orphan work, technically protected under U.S. Copyright but not enforced because the owner of rights can not be located. (That would explain the freedom with which translations have appeared.)
U.S. Public Domain. Hang on because things can get complex when analyzing the public domain. Here are few things to consider.

• Unpublished works. On January 1, 2013, all unpublished works (whenever or wherever created) by authors who died in 1942 will fall into the public domain in the U.S. So, anything by Kharms that hasn't been published will be PD. 
• Works Published Before January 1, 1978. The Russian collection of work published in Germany in 1974 would be protected for 95 years under U.S. Copyright provided that it had a valid copyright notice. 
• Works Published After January 1, 1978. The Russian collection of work published in Germany in 1978 receives the same term of copyright as if published in the U.S. -- that is, life of the author plus 70 years. So, that also would be public domain in 2013.

Copyright Office Records. It's quite easy to search the Copyright Office Records and we recommend that you do so (choose to search by name and type in "Kharms Daniil"). Our search seems to confirm that there is no copyright claim by Kharms' successors (assuming he has any). By searching the records, you will see that there have been dramatizations and translations, none of which attribute copyright to Kharms, and none of which claim copyright over the original work (only over the translations and modifications).

Can Rangoli Be Protected By Copyright?

Dear Rich: I am working on a children's book that explains how to do a type of folk art known as Rangoli. Rangoli is very popular and is made by millions of people all throughout India. The nature of this type of art, which has been practiced for many years, is that there are extreme similarities in the designs that people create, and designs are also passed on so that they are perpetually duplicated. As I research this topic, I find that people claim to have a copyright to designs they post on their websites even though some of them are clearly duplicates with the only difference being a slight change – either in the design or the color scheme, or possibly none at all. So, my questions are: (1) Can people claim a copyright to those designs that were clearly derived from other people’s work? What happens if there are designs in my book that fall in this same category? (2) What happens if, in the creative process, you inadvertently duplicate a design someone made of which you are completely unaware? Is there anything that can protect you in this instance? (3) How can anyone truly claim a copyright to art that has been duplicated by so many people for so many years? How do I protect myself? Rangoli artists often share elements -- for example, lotus flowers and leaves, swans and parrots, and certain human imagery. Many times these elements are copied and re-arranged and other times, an artist may create unique elements by hand, without copying. When elements are original, the copyright can be claimed by the artist. When elements are in the public domain -- taken from much older works -- a derivative copyright can be claimed as to the manner in which the elements are re-arranged and as to new elements that are added. But the less modification that is made to public domain elements, the thinner (and less enforceable) the copyright. In other words, the degree of originality matters when seeking to enforce rights over a traditional Rangoli work.
If you copy. If you reproduce someone's original work, or derivative designs over which people claim copyright, then the owner may pursue you in court. That's provided that the owner can register the work, convince a court that it is protectible, and that your use does not constitute fair use. That may be an uphill battle for some Rangoli creators, and not so difficult for some others.
Inadvertent duplication. As for Question #2, if you inadvertently duplicate a Rangoli work -- that is, you create it independently without copying --  then you would not be liable for copyright infringement.  As long as you can prove you didn't copy and you created something independently, there is no infringement.
Bottom line. We think there are so many centuries of Rangoli art available, and so you should be able to safely include older public domain Ragnoli works. If you want to reproduce a work and you're unsure of whether it's protected, our suggestion is to keep the image as small as possible as the trend lately has been to permit thumbnail usage of artwork as a fair use. Finally, avoid copying and reproducing large groups of Rangoli from websites. That's because some Rangoli collections may qualify as a compilation copyright which protects the choice and order of the collection but not the individual works.

Can I Use Book Covers on T-Shirts and Buttons?

Dear Rich: What is the law regarding reproducing book cover artwork as bookmarks, t-shirts, buttons, etc.? I was particularly wondering about older jacket art from before 1970. The Dear Rich Staff reports that the use of copyrighted cover art on merch is an infringement and one that is highly unlikely to be excused as a fair use. The copyright is owned either by the publisher or cover artist.
Lowering Risks. You're totally safe to use cover art published in the U.S. before 1923 (public domain). You may also be safe using cover art published between 1923 and 1964 because a large percentage of works from that period were never renewed and fell into the public domain. (You can learn how to research renewals here). After 1964, most cover art is likely to be protected under copyright. Of course, there's always the possibility that a publisher has gone out of business, the cover artist has passed away, or nobody cares about the reproduction, and there is nobody interested in going after you (the orphan works syndrome). Non-merchandise thumbnail uses of book covers for purposes such as this blog are likely to be fair use.

Old Paintings = Public Domain

Old Paintings = Public Domain (click to enlarge)

Copyright on 100-Year Old Photos?

Fritzie The Hawaiian
Hula Girl circa 1920s

Dear Rich: I have come across some very old photos taken by an uncle over 100 years ago. A few were sold to magazines at the time but most were never published. They were made into prints however. What would the copyright status on these be? My uncle died in the 40's. Could they be published now and copyright claimed starting in 2011?  As for the photos published in magazines before 1923, as you probably know, they are all in the public domain. We think it's possible there may be a few years remaining on your uncle's unpublished photographs. (By the way, making prints for private distribution does not amount to publication.) Copyright on those photos will end 70 years after your uncle's death. So if he died in 1949, you can claim eight more years of protection. You may find this strange, but under a quirk in copyright law, you could have earned an additional 45 years of protection (until 2047) if you had published these photos before December 31, 2002. (Who knew?) Publication after that date doesn't kick in this extra time period. For more on duration, check out the Copyright office circular on the subject.

40 Years Later: Fair Use, Public Domain, ITUs, PPAs, and more

Nolo, our employer, is celebrating its 40th anniversary this week and the editors have been asked to summarize legal changes during the past four decades. Here's an IP summary.
Ah, 1971, the good old days when nobody, except for a small group of attorneys and judges, even knew that “intellectual property” (IP) referred to copyrights, patents and trademarks. More importantly, back in 1971, consumers had no means of infringing intellectual property unless they owned a record pressing plant, a printing press, a film processing machine, or some other manufacturing device. Flash forward to 2011 and anyone with a smart phone can copy Nolo books, podcasts and Nolo videos. Intellectual property law has changed so dramatically in the past 40 years that documenting all of the major changes would take a week’s worth of blogs. So, we're going to just focus on five big changes to IP laws that affected Nolo.


Public Domain and the Never-Ending Copyright. In 1971, when Nolo was founded, the copyright in a Nolo book usually lasted an average of 56 years. But the 1976 Copyright Act initiated a new formula – copyright for the life of the author plus 50 years. For a Nolo author, that could mean that copyright in a book—for example, Patent It Yourself—could last longer than a century. In 1998, spurred on by the Disney Company and its aging mascot Mickey Mouse, the U.S. passed the Sonny Bono Copyright Term Extension Act which extended protection further (life of the author plus 70 years). One effect of this extension – which was challenged and upheld by the courts – is that for a twenty-year period ending January 1, 2019, no new works will fall into the public domain in the U.S.


Fair Use Defined. Five years after Nolo was founded, the U.S. overhauled its copyright law and included a historic first – a section defining fair use and establishing four factors to determine whether an infringement was excused as a fair use. The Supreme Court subsequently reshaped that provision twice.

• (1984) The Court ruled in the Betamax decision -- thanks to some helpful testimony by TV’s Mr. Rogers—that recording television shows off the air for purposes of later viewing (time-shifting) was a fair use. That was also the first time that the Supreme Court said that copying of a complete work (not just a snippet) was okay. It was also the first copyright case to touch a popular nerve. The Supreme Court received a record number of “friends of the court” briefs (non-parties expressing an interest in the case), and the nascent video industry rallied Betamax owners to lobby their elected officials to prevent legislation that would have nullified the Court’s ruling. The Betamax case was a precursor of the battles over digital copying, most noticeably the Napster case.
• (1994) The Supreme Court held in Campbell v. Acuff-Rose Music Inc. that 2 Live Crew's parody of Roy Orbison's song, "Pretty Woman," was a fair use. Prior to this ruling, most courts weighed the four fair use factors and placed the most emphasis on the "money" factor -- the effect of the use upon the potential market. But in Campbell, the court mandated that it was the first factor – purpose and character of the use -- that was most important. The question to be asked according to Campbell was whether the material taken from the original work was transformed by adding new expression or meaning, by creating new information, new aesthetics, new insights, or new understandings (sometimes referred to as the “transformative factor”). In a recent dispute where Nolo was threatened with a lawsuit over use of an image, Nolo was able to negotiate a settlement by asserting rights under the Supreme Court’s “transformative” standard.

The Intent-To-Use Trademark. Prior to 1998, there was no way for a company developing a new product to reserve a federal trademark. But the Trademark Law Revision Act of 1988 changed that and for the first time permitted applicants to “reserve” a trademark based on a bona fide intent to use the mark in the future. The new applications (dubbed “1b applications” or “intent-to-use applications” or simply ITUs) made it possible for Nolo to reserve one of its marks for a new software product.


Cybersquatters beware. Speaking of trademarks, Nolo was also able to take advantage of another change in trademark law – passage of the Anticybersquatting Consumer Protection Act in 1999. That law enabled Nolo to successfully challenge a Nolo domain name being used in bad faith to siphon web surfers who sought out Nolo but ended up at another site. In another domain name dispute, Nolo was able to successfully use the international arbitration procedures managed by the Internet Corporation for Assigned Names and Numbers (ICANN).


The Provisional Patent Application. At the time Nolo was founded, if you had invented something but you weren’t ready to file a patent application, there was no effective, fast and cheap way to record your discovery at the United States Patent and Trademark Office (USPTO). Then, in 1995, President Clinton signed a law that allowed inventors to file a provisional patent application (PPA) – a simple document consisting of text and drawings that describes how to make and use an invention. Once the inventor sends it to the USPTO, the inventor establishes an effective filing date for the invention and can use the "patent pending" label on the invention—at least for 12 months from the filing date, at which point a regular patent application must be filed. In 2009, Nolo created an online procedure to simplify PPA filing. As a result, hundreds of PPAs have been filed electronically using Nolo's system.

He wants to use image from concert video

Dear Rich: I have some old Who videos from a concert about 35 years ago that I took one frame out of and made my own electronic art out of it. While what I created is quite different then the original frame, it is the foundation of my art picture that I am left with. If I were to hang that up or sell it, would I be violating copyright laws. It was from a very old concert and the frame that I used as a my foundation for what I created could have come from anywhere. And, if I am violating copyright, is it really enforceable and/or do you think it would be an issue with anyone if I were to sell this edited image? Short answer dept. No we don't think your use is likely to become a legal issue. As we explained in yesterday's entry, using a single still can constitute infringement though it's usually not likely to result in a lawsuit. The concert film is most likely protected under copyright law as the Who haven't been around long enough to trigger any of the traps that would drop the movie into the public domain -- for example, if it was published before 1964 and not renewed.
Fair Use Dept. It sounds as if you have the makings of a decent fair use argument (although we'd prefer if you didn't get embroiled in that type of dispute). Here's a link to compare your use to other visual arts fair use cases.
Staying out of trouble dept. Are you selling only a single print?  Problems are more likely to develop if you market the work in bulk. So if you're paranoid about being hassled, don't mass produce your prints.