No copyright on library-made photos of manuscripts

I was looking at Wikipedia and found there considerable numbers of colour photographs of pages from manuscripts, most apparently professionally produced and so probably done by in-house departments at major libraries.  

Among these was one from the British Library, whom I know to be bitterly hostile to anyone seeing or using their holdings:

http://en.wikipedia.org/wiki/Image:British.Library.MS.Add.33241.jpg

This had a notice stating that such an image was public domain in the USA, and citing the following 1999 court case:

http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

What this seems to mean is that you can buy a picture of any page in any ancient or medieval manuscript from any library you like and the image is public domain in the USA.  You can then upload it onto your website, or Wikipedia, or wherever.

This, if true, is revolutionary.  Libraries and museums have sought prevent the circulation of photographs of out of copyright material by claiming that the photograph is copyright.  The damage that this has done to public access to their holdings is incalculable.

The page also referred to UK law, which is generally drawn up without reference to the public interest. The article expressed an opinion that even UK law would not protect such images.  Well, I have been enquiring in the ABTAPL list of smaller theological libraries, and been told that no case law exists in the UK, but that the opinion of “copyright professionals” is that UK law does allow museums and libraries this dog-in-the-manger right.  Apparently no lawsuits have ever been brought, tho, but the “Museums Copyright Group” has made all sorts of very positive statements reiterating copyright.  That the public fund these museums so that the public can see these items does not trouble these bureaucrats at all, it seems.

I shall enquire further as to how this works, but I would encourage every US citizen interested in manuscripts to start uploading images.  We in the unfree world may not be able to do this; you can.

Postscript: I have written to this “Museums copyright group” and queried whether preventing public access was really what museums were for.  I await a reply full of bureacratic evasions!

9 Responses to “No copyright on library-made photos of manuscripts”


  1. Stephen C. Carlson

    The holding of the Bridgeman case is that photographic reproductions of two-dimensional public domain works are not copyrightable. The copyrightability of photographs of 3D scenes (e.g. photojournalism) is not affected by the ruling.

    Please be aware that Bridgeman is a district court case and has not yet been tested at the appellate court level, so it is a conceivable that a similar case in the same circuit could be appealed and overturn whatever precedential value Bridgeman may have.

    Please also be aware that libraries and museums may attempt to impose restrictions on reproducing their art work by contract (i.e., in the sales agreement that accompanies the sale of their photographs). Such contractual rights cannot usually be enforced against third parties, however.

    This is not intended to be legal advice; for that, you should consult your attorney to ascertain the precise nature of the legal risks involved.

  2. Chris Weimer

    Stephen or Roger,

    My question is this: I have a reproduced manuscript of the Magna Carta – am I able take a picture of it and put it online?

    Many thanks,

    Chris

  3. Roger Pearse

    I would have thought that your photo would be public domain, since the reproduction isn’t an original creative work, and the original is out of copyright. But I defer to anyone who actually knows.

    On Stephen’s point: while Bridgeman is all the law that there is, surely no-one can be held liable for following it? And anyway, I wonder when any library last brought a suit for copyright infringement?

    Isn’t this all nuts, by the way? If there was any money in manuscript images, Rupert Murdoch or Bill Gates would probably own them all by now. I wish that I were a multi-millionaire. If I were, I would hire some good lawyers and create the case law myself.

  4. Justin Jenkins

    I find it funny that Stephen Carlson commented on this … it made me think …

    If Secret Mark is a hoax, are any pictures in the public domain — or not? While if it is real — they would be automatically, correct?

    Of course since they were written on pages of an older work, I suppose that would compound the issue.

  5. Chris Weimer

    Morton Smith didn’t publish the images as his own, and signed it without copyright. I don’t think his family (the only people who could sue on his behalf, I think) would discredit him so easily by claiming he did indeed fake them.

    Chris

    PS – I’m not a lawyer, and I have no idea what I’m talking about.

  6. Stephen C. Carlson

    The deceptive nature of the Secret Mark hoax raises various equitable defenses including “estoppel” (basically what Chris Weimer is arguing), “unclean hands,” and “fair use.” In other words, the modernity of a hoax shifts the issue from whether the right actually exists (copyrightability) to whether that right can be enforced.

  7. Stephen C. Carlson

    Roger said: “On Stephen’s point: while Bridgeman is all the law that there is, surely no-one can be held liable for following it?”

    No, not necessarily. It is decision of a federal district court, the lowest level in the federal judicial hierarchical court system, and as such it is not technically binding in the future. It is conceivable that another district court could decide a similar case differently and hold someone liable for “following” Bridgeman, notwithstanding the persuasiveness of Bridgeman’s legal reasoning (which seems to have been well received among IP scholars).

    In other words, Bridgeman is better than nothing for the open access position (and certainly better than a district court decision going the other way!), but only time will tell how much better it really is.

    Stephen

  8. Roger Pearse

    Ah the joy of being bound by dog-in-the-manger copyright laws which are impossible to discover, never mind follow.

    I imagine that people will merely create dummy Wikipedia commons id’s, and upload that way.

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