Tuesday, March 12, 2013

Can Site Sue For Downloading Photo?

Dear Rich: I'd like to follow up on the "Can I use Louise Brooks Photo?" question. Your answer was (basically) that it was likely public domain because it probably was not renewed, so the artist could use the image without (much) fear of repercussion from a copyright holder. But what about the site hosting the image from which the artist obtained the image? Would the artist have to worry about the site hosting the image claiming some sort of copyright? I know about Corel v. Bridgeman, but that doesn't stop many websites from claiming copyright to the PD photographs that they have scanned and posted. Does that have any validity, or could the artist freely download and use the photo? Does the ubiquity of the image impact this at all -- an image that's all over the place would be okay, while an image scanned onto one site be off limits? You can almost always download a public domain image without consequence. The only exceptions are if the work has been modified and a separate copyright exists in the derivative (the "moustache on the Mona Lisa" situation), or if you affirmatively consented to a site's terms and conditions (for example, you clicked "Yes to Accept"), and those terms and conditions prohibited downloading. The latter, by the way, is not a copyright violation, it's breach of a contract (a license agreement). Otherwise, you're free to download a public domain image. We've addressed this issue -- where somebody claims copyright over their copy of a public domain work -- in a previous post about Gray's Anatomy (not the TV show) and in another post about the Crystal Bridges Museum. In almost all cases, these claims over ownership over a public domain image are a mixture of wishful thinking and legal bluster.

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