Metropolitan Museum Of Art Claims Copyright Over Massive Trove Of Public Domain Works

from the that's-not-how-this-works dept

All too often we seem to see people making copyright claims over public domain works. It’s especially egregious when we see museums do this kind of thing, as happens every so often. While museums in some other countries like to try to claim that they can create a new copyright on the digital scan of a public domain image, in the US it is generally considered settled law that museums cannot create such a new copyright. Public domain is the public domain.

Thus, while it’s exciting to see that the famed Metropolitan Museum of Art in New York has released a treasure trove of high-res images of public domain works for people to search and download, it’s ridiculous and depressing that they’re effectively claiming copyright over them, even while stating the images are in the public domain. And, no, this isn’t just a case where the Met’s terms and conditions discussing copyright don’t even take into account the possibility that some works may be in the public domain. It has a separate section, specifically labeled “public domain” — and then tries to tell you what you can and cannot do with those works:

If you can’t read that, it says:

Images of Works of Art that are in the Public Domain. Images of works of art that the Museum believes to be in the public domain which are identified as Open Access for Scholarly Content (OASC) on the Site may be downloaded for limited non-commercial, educational, and personal use only, or for fair use as defined in the United States copyright laws. In addition, authorized non-commercial uses for such images shall include scholarly publications in any media. Users must, however, cite the author and source of such images, and the citations should include the URL “,” but not in any way that implies endorsement of the user or the user’s use of the images.

Except that’s not true. You can’t put any restrictions on works in the public domain. They can be used for commercial use. Fair use doesn’t even apply, because there is no copyright. Users do not have to cite the author and source, though it might be a nice thing to do.

You would hope that the folks at a museum like the Met would actually understand the basics of copyright like this. However, it’s yet another indication of how we now live in a “permission culture” where even people who should understand what the public domain is, don’t seem to get it. Last year we wrote about a museum in Amsterdam that did things right: offering up not just high-res images of public domain works, but additional tools to help the public do more things with those works. The Met should take some notes from the folks over at the Rijksmuseum.

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Comments on “Metropolitan Museum Of Art Claims Copyright Over Massive Trove Of Public Domain Works”

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pj says:

infringement, computer fraud, who cares...Let's sue!

As their images do not add significant creative elements, perhaps not a copyright infringement, but surely they could claim a CFAA violation for accessing their servers to download the images that are used in contravention of the “license” limitations…

Kenneth Michaels (profile) says:

Re: infringement, computer fraud, who cares...Let's sue!

Yes, and a “terms of use” for the site could import established rules from the law to define the scope of the “terms of use” (such as “fair use”) even while acknowledging that copyright does not apply.

But the “terms of use” here does not make it clear as to what it is trying to say – e.g., as to whether they are importing rules or just don’t know what they are saying.

Kenneth Michaels (profile) says:

Re: Re: Terms and Conditions

It appears that the museum is not trying to claim copyright on anything. They are simply importing “fair use” rules into their terms and conditions for using their website. In other words, they are saying that if (hypothetically) these images were copyrighted but your use would qualify as “fair use”, then that use is okay under these terms and conditions too. (Although good luck with enforcing that.)

What is truly bizarre is that the “terms and conditions” could not really be legally binding – even if agreed to by the user – because it says: “By accessing the Websites, users agree to be bound by the following terms and conditions, which the Museum may revise at any time. Users are encouraged to visit this page from time to time to review current terms and conditions.”

You can’t agree to a contract if all the terms are subject to change. That is not a contract, it is a promise, that is not enforceable.

And, using the site is by no measure an agreement to anything, which is necessary for the terms to be binding as well.

Leigh Beadon (profile) says:

Re: Re: Re: Terms and Conditions

It appears that the museum is not trying to claim copyright on anything. They are simply importing “fair use” rules into their terms and conditions for using their website. In other words, they are saying that if (hypothetically) these images were copyrighted but your use would qualify as “fair use”, then that use is okay under these terms and conditions too. (Although good luck with enforcing that.)

Even apart from it being unenforceable, it’s ultimately legal nonsense. I suppose they could try to argue that someone using the public domain images commercially violates their terms of service… but, how does that really work when copies are ephemeral and infinite? For example, what if I say this:

“I downloaded the high-res image for my personal, non-commercial use: republishing it in my own free archive of public domain artwork. I then began using copies of that public domain art for whatever purposes I damn well felt like, because it’s public domain.”

That may sound absurd, and it is deliberately so somewhat, but it’s still really the central issue: once I’ve obtained a piece of digital public domain art from their site, they simply have no control over it — even if we accept that they have control over their “original” downloaded from their site — because copies of that original can be made trivially and infinitely, and they have no legal basis for controlling copies.

Whatever says:

Re: Re: Re:2 Terms and Conditions

I suppose they could try to argue that someone using the public domain images commercially

This issue at hand however is that the images, if created in the last 20 years as an example are generally copyright unless proven otherwise.

Note: this isn’t to say that the original work is not in the public domain. It’s the image of the original work that they are referring to. There is no indication that these images are in the public domain as they are (unless noted). Otherwise, they do hold copyright to the images they have created in the last X years (however long copyright may be where the images were created).

I think you are confusing the public domain status of the original work with the status of a photograph or digital image of something produced much more recently.

Pragmatic says:

Re: Re: Re:3 Terms and Conditions

Which is what the problem is; they’re displaying the items in the museum. This should not be a copyright issue.

If I take a photo of a ladybug and put it on my website, and a photographer who makes a living photographing bugs for a wildlife magazine or something sues me, does he have standing just because I happened to have snapped the ladybug as it sat on a leaf of the same kind of tree as in the photographer’s image?

Who “owns” “a ladybug on a sycamore leaf?” That’s the kind of trouble we’re running into.

Well the copyright should lie with the photographer but if the museum is claiming ownership, what’s the deal there? If the photographer has been paid already, let that be sufficient. If not, he or she needs a new business model.

william (profile) says:

I’ve been wondering… Does digitization of work give you a claim on copyright?

Cause that seems to be the case for many museums and public entities. They take something in the public domain, digitize it, and then claim copyright for them, or at least the digital version of them. I guess the mentality is that they put the work to digitize it so they have a stake in it and should profit from it.

Does copyright work that way?

Anonymous Coward says:

Re: Re:

This is what has always bothered me about copyright and photography…

Say I find a photo on the internet that I like – if I were to take the exact same camera, put it in the same location at the same time of day with the same camera settings, and take a picture of the same subject (say a statue or building) – did I violate someone else’s copyright with my version of the same picture? Obviously it won’t be pixel-for-pixel identical, but for all intents and purposes, I used the same “artistic expression” to produce my photograph according to a photographer… which suggests I did violate their copyright.

And then again, if I took a picture of the statue, or building, did I further violate the copyright of the statue maker, or the building architect? This is where the whole mess seems to be a big pile of diarrhea in my mind… a bunch of whiners.

JaDe says:

Re: Re: Freedom of Panorama

I’m not sure about your first scenario, but for buildings and sculptures it depends on where they are. It’s called Freedom of panorama and is something you need to familiarize yourself with if you’re a photographer. In the US at least, buildings are fair game, but art and sculptures are a grey area at best.

Anonymous Coward says:

Re: Re: Re:

I can tell you have never really been into photography as a hobby or you would know that you can almost never take the same photograph twice. The weather, lighting, vegetation growth, cars, pedestrians, etc all change continually. You may get close, but you will never get exact.

As for copyright, if you took the pic, you have the copyright.

Leigh Beadon (profile) says:

Re: Re: Re:

Sadly, there’s no simple answer to any of this stuff (even though there should be).

Firstly, on the subject of straight digitization, it’s extremely hard to make any argument under copyright law that simply scanning/digitizing something earns you a copyright over it — but it’s also true that museums, archives and plenty of others claim this copyright anyway as a matter of course. In theory, this was made clear in a 1999 lawsuit that flatly stated “exact photographic copies” of public domain images do not receive a new copyright, but that doesn’t seem to stop anyone, and I’m not aware of any major recent cases that have really tested the rule, though I’m probably missing something.

Certain things are clear though, and one is that work or “sweat of the brow” does not establish a copyright. Copyright is for creativity, not effort, which is why a database of facts like phone numbers — though difficult to assemble — does not receive a copyright. Of course, even here, people still claim otherwise. Further complicating things is that Europe does have a special “database right” — though there is pushback.

Then there’s the question of photographing sculptures. As noted, it’s a bit of a grey area, in theory coming down to a fair use/transformative work determination, which is notoriously ill-defined. Unfortunately, the outcome is often ludicrous, such as with the US post office losing a lawsuit over a stamp with a photo of the Korean War Memorial. If you look at that post, you’ll see that the photo is pretty much the definition of a “creative” and “original” take on the sculpture — it’s shot on a snowy day in high contrast and a bleached out colour palette — but it was found to be infringing on the sculptor’s copyright. AFAIK the suit is still in court to determine damages — with the sculptor requesting millions, after being originally awarded $5000, which the appeals court agreed was too low for some reason. Making things even more idiotic is that the war memorial is on public land and is owned by the Federal Government — but the government didn’t acquire the copyright or release it to the public domain in any way.

The same thing gets raised regarding street art. Photographers are often forced to settle for publishing shots that contain street art in public places — and not just shots square-on showing the art, but other unrelated photos that happen to include the artwork.

“Mess” is definitely the most appropriate word.

John Fenderson (profile) says:

Re: Re:

“Does digitization of work give you a claim on copyright?”

IANAL, but as I understand it, no. In order to claim a fresh copyright, you have to do more than just format-shift. You have to add additional creativity to the work as a whole (such as using the work as a part of a new work) — then the copyright would apply to the new work as a whole, not the work that was used as an ingredient.

s7 says:

Re: Re:

I see this quite frequently with old movies that are in the public domain. You can download the movies for free from, people have uploaded them to YouTube, etc….

However, I’ve bought a few collections of these same movies “50 Horror Movie Mega Collection” or “Sci-Fi Movie Monsters Collection” at the dollar store. There are a metric crap-ton of piracy warnings before you can even get to the menu. I had one that had a minute long animation of a movie pirate being cuffed and thrown in jail.

They didn’t colorize these movies, they didn’t clean them up, they’re the same quality as you can find online. They’ve just added a menu and burned them to DVD.

They never state that just the Menus’ are copyrighted. So anyone buying would believe that ALL of the movies are still under copyright protection.

s7 says:

Re: Re: Re: Re:

Ah… Thank you for reminding me of the term “Copyfraud” I read a really well written paper on this a long while ago. Found it….

Copyfraud – Jason Mazzone
University of Illinois College of Law

Brooklyn Law School, Legal Studies Paper No. 40
New York University Law Review, Vol. 81, p. 1026, 2006

Coyne Tibbets (profile) says:

Re: Re:

I’m not an expert but I think that might be right. I believe the digital picture would be a derivative work, giving the museum an interest in the digital image, even though the original work is public domain.

Can someone verify that?

Now, on the other hand, if you were to go to the museum and take your own digital picture of the work, I believe it would have your copyright that could not infringe theirs. Though they would probably try to restrict you from taking pictures for that reason.

Basically, they’re trying to grab new control of the paintings in the digital world, which kind of stinks.

Ima Fish (profile) says:

I’ve said this before: photographs do not deserve copyright protection because photographers do not need the incentive of copyright.

Brides and grooms will still hire wedding photographers. Moms will still make appointments at portrait studios. And photographers will still be paid to take pictures of public domain art.

The second reason is that photographs, especially these, are not creative. They are merely digital representations of other works of art. There’s nothing new other than the format, which is not sufficient to give an entirely new copyright protection. Because if that’s true, every time I open a PDF in OpenOffice, I’m creating a new copyright. Which is simply asinine.

PaulT (profile) says:

Re: Re:

I think it’s unfair to photographers to claim there’s no art or creativity in their work. Take 10 of them and ask them to photograph something, and the results will vary widly.

But, it depends on the actual work undertaken. Merely taking a full record of an existing artwork (for purely documentary purposes) is somewhat different to someone hired to take portraits of people not naturally photogenic, for example. The former demands as little input as possible from the photographer, for example, while the latter probably demands it.

Anonymous Coward says:

Re: Re:

Have you ever done photography? If you are talking about Uncle Bob snapping pics of the wedding party lined up, then no, there isn’t much creativity. But do a little googling for the real wedding photographers and you will see some outstanding work. From lighting, posing, depth-of-field, etc. I use to do some weddings and I was more of an Uncle Bob than a real photographer and the creativity part is what sets photographers apart. The truly great photographers understand the art and the science of photography.

Michael (profile) says:

Re: Re:

I am not a huge fan of copyright, but I have to disagree with your assessment that photography always has these types of paid incentives.

You are taking a subset of photographers (or photographic work) and calling that all of photography. Not all photographers do the kind of hired work you are taking about. Many photograph things or people and sell the photos in galleries or as postcards, etc.

I have seen a great deal of photographs that are extremely artistic and creative – and certainly nothing I could have come up with.

If you can argue that copyright is an appropriate incentive for a painter (not that I am), the same argument certainly should apply to a photographer – both can capture an image, and both can be creative about it.

Karl (profile) says:

Re: Re: Re:

Are you implying that Ansel Adams was not creative?

Whether something is creative is a separate issue than whether it is (or should be) protected by copyright.

Sure, photographers are creative, but that’s not the point. The purpose of copyright is to act as an incentive to create and distribute. If those photographs would have been created and distributed without copyright protection, then they shouldn’t have copyright protection.

And, in this case – when it’s a straightforward, non-creative reproduction of an already-existing work – then the photographs don’t deserve such protection.

And, under the law, they don’t have such protection. The photographs themselves absolutely are in the public domain. The library could restrict access to them, just exactly as they restrict access to the works themselves. But they cannot, legally, place any restrictions over what happens to reproductions of those photographs.

nasch (profile) says:

Re: Re: Re: Re:

Whether something is creative is a separate issue than whether it is (or should be) protected by copyright.

Which one? Because whether it is protected by copyright and whether it should be are also separate issues. The rest of your comment seems to indicate (which I think is correct) that whether there is creativity is at the core of the question of whether the photograph is copyrightable (note: is, not should be).

Anonymous Coward says:

If you repeat a lie enough times...

If you repeat a lie enough times people will believe it. So in this case, if the industry tells you enough times what rights you have and don’t have, you will eventually believe it. Plus, it doesn’t seem like the Met is being very nice if they are giving away what is already free. But if they give away free stuff and tell you it is only free out of the goodness of their hearts, then they get more credit.

D. Hazelton says:

Possibly not copyrightable, but...

It’s quite possible that the photographs of public domain works in the museums collection are not copyrightable, as they do not add anything new or transformative to the work. However, even if that is the case, the museum does still have a right to control how photographs they paid to have done are used. No, they are not claiming copyright over the original work, just the specific image of it that they paid for the creation of.

Leigh Beadon (profile) says:

Re: Possibly not copyrightable, but...

the museum does still have a right to control how photographs they paid to have done are used.

Sure — if they print out some physical photos, or if this had been shot on film, then they would own those prints / negatives just like they would own any other property.

But they have no control over how copies of the photos are used, because that’s what copyright covers. So if they choose to make the photos available digitally, they have no control over what people do with them after that, and no right to stop people from taking copies or tell them what they are allowed to use those copies for.

Anonymous Coward says:

Re: Re: Possibly not copyrightable, but...

“Sure — if they print out some physical photos, or if this had been shot on film, then they would own those prints / negatives just like they would own any other property. But they have no control over how copies of the photos are used”

wow, the stupid here. It burns.

Please try out your theory, Einstein.

Joe says:

Re: Re: Re:2 Possibly not copyrightable, but...

Yeah, a Jefferson would be much more appropriate, considering he was at least educated in law. Better yet, an actual publisher and inventor like Franklin who skirted both sides of the law. 😉 Ben Franklin should be at least as familiar as Albert Einstein to USA citizens unless their history education is absolutely worthless.

Michael (profile) says:

Re: Possibly not copyrightable, but...

Bridgeman Art Library v. Corel Corp says that is incorrect (feel free to look it up).

An exact photographic copy (digitization) of a work does not qualify as a creative work so it does not get a copyright – it does not matter how much effort went into doing it.

Now, if you added a creative aspect – like taking a picture from an odd angle, putting other things into it, etc. you MAY be able to argue that there is a creative aspect, but that is not what was done here. They have specifically digitized the art in high-res images.

zip says:

Kings of Compensation: How the Metropolitan Museum of Art Rewards its Own

Thomas Campbell, who was paid relatively modestly when he took over the Metropolitan Museum of Art in 2009, has advanced toward the top of the pack. The Met gave the former tapestry curator a 10 percent raise in 2012, to $1.2 million in salary and benefits, according to its tax return. …

Leading the Met, with expenses last season of $344 million, involves intense fundraising, …

Campbell?s compensation increase came as the Met?s attendance dipped slightly and the institution reported its first operating loss since 2008-2009

limbodog (profile) says:

Law by fiat

It seems to me that more and more companies (and government organizations) are simply declaring things to be law which aren’t. When it was one or two companies doing it, I chalked it up to incompetence, but at this point I have to assume that it is an intentional act meant to scare off those who are not familiar with the *actual* law.

And why not? Has anyone ever seen repercussions for doing so?

(by the way, failure to mark this post “insightful” is a felony)

Anonymous Coward says:

Privacy of patrons who access database

Consider the following items from an article.

Payment Demands for Spurious Copyrights:
Four Causes of Action

Breach of Warranty
Unjust Enrichment
False Advertising

– – – – – – – –

And consider the other issues involved with Terms of Use

Bogus “proprietary rights”
Unconstitutional conditions of Access
Restrictive Covenant
Appeals process for denial of permissions
Freedom of the Press

– – – – – – –

The issue of “Privacy” of Library Patrons needs to be explored – for access, and use.

For state archives, privacy for FOI requests needs to be addressed.

For public libraries, patron privacy needs to be addressed.

For non-profit institutions, patron privacy needs to be addressed, using library privacy laws, non-profit laws, child privacy laws, or whatever it takes.

Before any of the above issues arrive, how do these places have the right to collect the names and personal information about people who access the collections, whether in person or on the internet?

On the internet, how do they even know WHO is accessing the collection – a minor, nursing home resident, foreigner?

Does a book store demand the name of a person buying a book?

A legally-made copy is no different than a book.
If a third party sells a copy on eBay, what then?
Will they go to court to find the seller and buyer?

sunnyafternoon (profile) says:

From Zero to Hero In One Step

This is strictly my own opinion. I know people will disagree, but here it is.

I came to this article because I would really like to use the Public Domain images on the Met website in my artwork. I should have no fear of using them. But it does scare me to see their notice. Though I know they are wrong.

Don’t the curators at the Met realize artists and bloggers are a huge part of their online audience? Artists and bloggers are not going to help them the way things are. However, if they make friends with artists and bloggers they will benefit much more. Maybe a notice something like this:

“At the Met we realize there is controversy regarding the licensing by museums of Public Domain images. We choose to freely offer our images to the public. In return we ask when possible that credit be given for use of our photographs in artwork, commercial products or on blogs. Your participation in crediting us will benefit the museum so that we may continue to serve the public now, just as we have for many years. Thank you.”

I would place this in fine print at the bottom of each page.

As an artist and blogger I would go out of my way to credit the Met.

Instead of scathing compolaints like the one in Huff Post, bloggers will praise the Met for their progressive views. This will establish them in the public’s mind as “white hat” guys. Good guys. And that is worth its weight in gold on the Internet.


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