Copyfraud: False claims of copyright such as a claim of copyright ownership of public domain material. (source: wiktionary)
Let’s start out this discussion with a quick true story:
I was working on a presentation for one of my graduate classes. My group partner and I were making a dang good presentation and wanted to spice it up with some nice photos of works of art (our topic was art related). So, we went to one of the more prominent art image databases: ARTstor. We found some paintings by Marc Chagall from 1911 and I was all ready to download them and insert them into our presentation. I then did the obvious next step: right-click the image to Save as… Not so fast! The flash interface doesn’t allow that. Why not? That is a complicated question to answer.
My aim is not to fully answer that question. The purpose of this post is to raise awareness, pure and simple. There is a problem out there and it has a name: copyfraud. The perpetrators are either ignorant at best or deceitful at worst. The ones being harmed are you and I, the public. People who want to create but are being unjustly restricted. And being unjustly restricted means they are being unjustly censored.
(Nina Paley, CC:BY-SA)
Back to that Chagall painting. The cool part was this painting was done in the early 1900′s, 1911 to be exact. What that means is that the copyright term on that painting has expired (in US law, which is what governs ARTstor as it is a US non-profit). And, here is the part that is the issue, according to US copyright law any faithful reproduction of a creative work that does not add any new creative element does not produce a new copyright. In simpler terms: if I take a picture of a public domain painting then I do NOT hold a copyright on that photo; that photo is also in the public domain. I did not add any new creative anything to it so there is nothing to copyright. This is all explained in the court case Bridgeman Art Library v. Corel Corp. LARGE CAVEAT: this only applies in the US. The US rightfully, in my opinion, does not give copyright rights for “sweat of the brow” aka: hard work only (see: Feist Publications v. Rural Telephone Service). Countries like the UK do give copyright restrictions (“protections”) for sweat of the brow work.
Back, again, to that painting by Chagall. I decided to click on the “View Full Record” link to learn more about it and I came across this line: “Rights: © 2007 Artists Rights Society (ARS), New York / ADAGP, Paris” BZZZZZZT! WRONG!
This, my friends, is a classic case of copyfraud
What kind of effect does this have on you and me? First and foremost it “[results] in users seeking licenses and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the uncopyrighted material” (Mazzone, “Copyfraud”). People are paying fees to organizations that purport to have our best interests at heart to use images that are in the public domain. Or, almost worse, people are not creating new and cool works because they are told they aren’t allowed to. This is where copyfraud hurts you: our culture will be locked down by those who have no right to do so (cue Free Culture and Free Speech discussions).
Now, let me be clear: I am not saying that people should never be allowed to sell public domain works. That is, of course, one of the things you are allowed to do with public domain works: sell them to people. In fact, paying the people a small fee for the professional work they did to create a high quality scan of a work is important; it means they’ll keep doing it.
However, falsely claiming that you hold a copyright on an image is illegal. It is even spelled out explicitly in the US Copyright law: “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″ (emphasis mine). So either unlawfully claiming copyright or being someone who distributes that unlawfully copyrighted work results in a fine of up to $2,500. ARTstor, if prosecuted, could be fined a large amount of money ($2.5 million if there are only 1000 works that fall into that category, which according to my test searches is probably a low ball number).
This, of course, assumes that ARTstor is willfully, “with fraudulent intent,” making available these images with false copyright notices. Unfortunately, I think that isn’t too much of a stretch. I don’t think it is a stretch because I don’t believe that the people running ARTstore, or their lawyers, are ignorant. If I were a lawyer asked to sign off on a database of scans/photographs of works of art, this is one of the things I would double, nay, triple check. First, make sure that copyright information is being preserved in the database. Second, make sure that the copyright information in the database is accurate. Third, make sure that you are attributing copyright to the copyright holder on each image, if applicable. Fourth, make sure you aren’t falsely attributing copyright on any image. And in doing any of that I would, as a lawyer worth his salt, research court cases that have an effect on scans of works of art like the Bridgeman v Corel case.
In addition to assuming ARTstor has consulted people with JDs, there are reports out there of people who work for other institutions who, when asked about the fact that they are falsely claiming copyright, say “everyone else does it.” I wish I could say I was joking; that is truly what they say, and think. Put that related example and everything else said together and one could easily assume that ARTstor is doing this “with fraudulent intent.” Again, strong words, but this is an important issue.
What you can do:
Leave a comment with an example of copyfraud that YOU have found. Lets get a big list of organizations who are intentionally or unintentionally falsely claiming copyright on public domain works. The next step is to get them to stop. Emails, phone calls, blog posts, identi.ca/twitter notices, whatever. Stand up for your rights.
 “unjustly” instead of “unlawfully” because we are being contractually limited, which is legal. It just isn’t right.
 This post doesn’t even get into the discussion of overly zealous publishers making wild claims that over-reach and stifle creativity. Examples are the Major League Baseball and National Football League organizations saying that no part, no matter how small or short, can be reproduced without their permission. That is a blatent lie: those uses fall under Fair Use. The lawyers who wrote those notices, assuming they did any research or know anything about intellectual property law, actively lied when they wrote them. That is a strong statement on my part, but I can only either assume that or assume that the people who wrote those notices were not either A) educated lawyers or B) they didn’t consult an educated lawyer. For a good discussion of this issue see (for example): Mazzone, Jason “Administering Fair Use.”
 However, a discussion of the restriction of our heritage via contractual terms should also be had. Contracts are weird things: you can sign away rights that you have, like the right to reproduce public domain images. And remember, EULA and Terms of Service are binding contracts in the US. I think that may be my next post on this topic: “Taking Away Your Rights by Clicking ‘I Accept’”.
Copyfraud links (short list):
EDIT: Clarified paragraph beginning with “In addition to the fact..” I was overloading the pronoun “they.”
EDIT2: misspelling, thanks Douglas.