Copyfraud, Watermarks, and Terms of Use

One of the less talked about examples of copyright misuse is what’s known as copyfraud. This is where a person or organization asserts copyright (or copyright-like) restrictions on a work to which they have no legal rights to do so. This is most commonly perpetrated by archival institutions such as libraries, historical societies, and museums attempting to restrict the access and use of materials in their collections to which they do not own the copyright or where the copyright has expired.

For simplicity’s sake let’s use the example of an historic 19th century photo that is in the public domain in the United States, and it’s in the collection of a local library. That library has every right to restrict access to said photo by requiring an in-person visit to view it, by providing only a low-resolution copy on their website, or even by watermarking it. If someone wants to use that photo in a publication, and get a better copy that’s print-worthy, then the library can charge money for the high-resolution, non-watermarked version, whether digitally or with photographic reproduction. They’re essentially charging for access to the original. That’s generally fine.

Where things start to get iffy is when they attempt to restrict any further use of the image, even the low-resolution watermarked copy on their website. Since the image is in the public domain, they have no right to impose any restrictions on the further use of that image, or at least they shouldn’t. But here’s where the questions about watermarks and terms of use come into play.

The 1999 Bridgeman Art Library v. Corel Corp. case in the United States District Court for the Southern District of New York determined that slavish reproduction of a public domain work does not confer copyright on the reproduction since it is not transformative nor creative (even if highly skillful). Essentially, format-shifting a public domain work does not grant a copyright to the new format, so libraries cannot claim copyright on their scans. While it wasn’t a Supreme Court case and is not binding precedent, it is highly influential as persuasive authority, and it is widely followed by other federal courts.

I have not been able to find a definitive answer to whether adding a watermark is sufficient to transform a scan from a “slavish reproduction” to a “transformative/derivative work”. I would argue that it isn’t, but like I said, I haven’t been able to find any information dealing with it. Most information out there is just about whether you need a watermark to show that you own the copyright to an image you produced yourself (you don’t) or if it really proves any sort of ownership (it doesn’t). But putting your own watermark on a scan you made of a public domain image is starting to get into questionable territory.

Another thing that some libraries do, especially on their websites, is have a click-through agreement or other terms of use that you are required to accept in order to access their archives. This can include the same kinds of conditions that you find in copyright law, but they’re not actually asserting copyright, just these new conditions. Is that able to trump fair use? Of course they can say anything they want in their agreement, but that doesn’t make it enforceable.

I’m no lawyer, but my understanding is that clickwrap/click-through agreements are generally difficult to enforce. Also, because such agreements are rarely tested, they tend to (IMHO) accumulate terms that are very obviously unenforceable or nonsensical.

A not-exactly-parallel example: my employer tacks onto every outgoing email a blurb saying that the information it contains is confidential and demanding that anyone who has received this message in error delete the recieved message and also reply to it, thus informing the sender of his/her error.

Well, they can’t have it both ways: replying to the message puts a copy of the reply (which contains the original message) in the replier’s sent-mail folder. Sure, a recipient might then delete the reply from their sent-mail folder, but normal human beings are either unaware of the copy or don’t care. Also, most people (including many lawyers) don’t understand that email relays necessarily produce electronic copies—often, but not always temporary ones—of the mail they transmit. In many cases, the recipient literally cannot delete all copies of the offending email. It’s an unreasonable request to perform an impossible task.

In my non-expert opinion, a lot of the language in those agreements is there not to effect the constraints desired, but rather with the thought that “I bet this will cover my ass if anything bad happens.” In other words, I suspect that some unenforceable agreements were never actually intended to be enforced. I’d be curious to know what someone with actual expertise thinks.

Also, I really don’t think it’s a problem to put a watermark on an image one has made of a public domain work—I expect you can watermark it as much as you like, but that watermark doesn’t make your image copyrightable, even if the watermark includes an assertion to the contrary. I don’t think you meant to say that simply adding a watermark puts the person who watermarked the image “into questionable territory,” but that’s literally what you wrote. Again, while I have some exposure to IP law, I really might not know what I’m talking about here.

As you recognize, there’s still no binding precedent on the issue of copying public domain works. Most legal experts on copyright, though, seem to agree that the reason we only have Bridgeman v. Corel (Southern District of New York) to look to on this issue is precisely that almost everyone in intellectual property law believes that other courts would do exactly the same thing as the Bridgeman court. If content owners thought they could get a court to rule that copying a public-domain work would create new copyright, they would have brought new cases in other jurisdictions long ago. They haven’t, suggesting that they don’t want to create binding precedent on this issue. They prefer to live in the world of access control and vague threats.

I know that it’s sometimes dangerous predicting what courts might do in hypothetical situations, but I’m very confident that no court in the country would determine that the addition of a watermark creates new copyright in an otherwise public-domain work. A watermark is, fundamentally, little more than a notice or claim of ownership. It’s not really transformative in the manner required to assert new copyright. It lacks what the judge in the Bridgeman case, citing the Supreme Court, called “the ‘creative spark’ which is the sine qua non of originality.”

Whether it’s able to trump public domain is an important issue; it can’t trump fair use, as far as I understand it.

Whether such a notice could over-ride the public domain nature of a work is unclear to me. Part of the ruling would probably turn on how clear the click-through agreement was. Courts have, in some cases, ruled against some such agreements because they were ambiguous, or because they were unreasonably long and complicated, or because the simple act of clicking on a button did not adequately indicate understanding of the terms.

More generally—and I know we’re getting deep into IMHO territory here—I wish that these libraries and museums and other owners of public domain works would just let it go already. Yes, you own the object; good for you. But accept that items from centuries ago are now out of copyright, and that you are just being a dick by trying to find a workaround that allows you to prevent people from copying public domain works. I sort of understand why some institutions do this—many of them are cash-strapped and need every possible source of revenue—but it doesn’t mean I have to like it.

If you want input from someone with a lot of personal experience dealing with this issue, you should solicit some input from Doper Una Persson. Una ran (runs?) an online art gallery that uses public domain images from a variety of museums and galleries around the world. Una spent a bunch of time dealing with galleries who would call or email, and threaten to take legal action over the online use of their images. (I don’t think Una actually posts here anymore, though.)

I wasn’t trying to imply that the person/institution putting the watermark on the photo was putting themselves into some sort of questionable legal territory, but that the photo itself is getting into uncharted waters of what’s a derivative work or not. Let’s say you download a low-resolution crappy scan of the photo with the library’s watermark from the library’s website. That and many other libraries would say you’re not even allowed to use that crappy low-resolution watermarked photo on your own website, blog, Instagram, or whatever. It’s where Bridgeman starts to lose relevance because it’s no longer a slavish reproduction, at least in their opinion.

My fault for saying fair use instead of public domain. Still, let’s ignore the issue of overcomplicated fine print or computer click-through ambiguity and just stick with the overall idea of a terms of use agreement. If you went to the library in person they can just as easily hand you a form with the legalese on it to sign, and it could even be quite simple and clear, but would it actually be enforceable in any way? It seems like it would open too many loopholes for abuse to be allowable.

My employer requires that copies of all emails received or sent must be saved centrally. I couldn’t delete that copy of the email sent to me in error even if I wished and replying to it would simply save another copy

But they’re wrong. If we assume, for the sake of the discussion, that the Bridgeman ruling is actually relevant, and that prior Supreme Court determinations about the underlying reasons for granting copyright should be taken into account, then it’s pretty clear that slapping a generic watermark on a public-domain work does not transform that work in any meaningful way. The watermark is placed there for nothing more than the purpose of claiming ownership; adding it to the image does not involve any “creative spark” and does not create an original work in the sense that copyright was designed to cover.

As I noted above, we can never be 100 percent sure of what a court will do, and copyright cases are difficult precisely because they are so context-specific and fact-dependent. But I would be incredibly surprised if any court upheld the idea that the simple addition of a watermark confers new copyright. Of course, this doesn’t stop the library from filing a suit, and if you’re the defendant, you then have to decide whether it’s worth spending the money to defend the suit. Even if it gets thrown out of court, you might spend hundreds or thousands of dollars to get your judgment.

They would probably have a claim against you for violating the terms of the contract. Again, as in the above case, they could take the claim to court, and the issue would turn on the exact language of the agreement that you signed, and what you did with the image. That’s the problem with having broad, hypothetical discussion about copyright law; they’re often difficult precisely because of the specificity of each particular case.

But, as in the case of watermarks, we also have to consider the practicalities. Lawsuits are not just expensive to defend; they are also expensive to file and pursue. The library or museum would need to calculate whether a victory would end up costing them more in legal fees than any amount they might be able to recover from the person who violated the agreement.

As the doper I referenced above, Una Persson, has noted in talking about their experiences with this issue, what generally happens is that you get a warning from the institution with a whole bunch of scary and threatening legal language, but if you actually press them to state a clear legal claim, or ask them exactly what copyright they are asserting, they fire off a last piece of bluster and then leave you alone. This type of threaten-then-retreat strategy appears to be pretty standard among a lot of libraries and museums.

Here’s a post that Una made on the issue in a previous thread, from about ten years ago:

It’s worth noting, by the way, that Title 17 of the U.S. Code also makes it a criminal offense to falsely claim copyright over a work.

§ 506 ©, under the general heading “Criminal Offenses,” says:

Proving intent can be a bit difficult, but I think that this section of the code should be leveraged a bit more often in the case of companies that make a habit of asserting copyright over public domain works.

That would seem to be the case for a lot of copyright/trademark infringement cases. It’s easy to send a scary letter, but following through on any litigation is another story. Plus if things escalate they have evidence that they made a good faith attempt to protect (what they think is) their intellectual property. These libraries might also think that copyright has a “use it or lose it” clause like trademarks (it doesn’t), so they need to go after supposed infringers or risk losing the control they think they’re entitled to.

To be precise, they might have no rights under copyright law to impose further restrictions, but they might have rights under other kinds of law, such as contracts.

After all, if they own the copy, they have the right to stop you from making a reproduction in the first place. It’s within their rights to decide how accessible it will be. So once they’re offering you that benefit, you’re in contract law territory.

A watermark is unlikely to be sufficiently creative to create a separate work by itself, but it can certainly become a trademark.

On the contrary, when click-through agreements come before a court, they are almost always upheld as enforceable contracts.

No one has to give you online access to images in their possession. It’s voluntary. So they are offering something of value. Contract law allows them to demand something of value in return, that is, use restrictions.

Now, there might be particular cases in which some terms are found inherently unenforceable, but as a general principle, these kinds of terms are valid.

That kind of e-mail boilerplate is almost certainly unenforceable on its own. It’s not comparable to click-through contracts, starting with the fact that you didn’t initiate any transaction. You didn’t ask for the e-mail and you didn’t click “yes” on any terms. It just appeared in your inbox unbidden.

I think it’s the shrink-wrap agreement that doesn’t hold up, because you can’t read it until after you purchase the software and open the box, making it un-returnable.

So long as there’s some way to read the agreement before breaking the seal, or some way to return it after breaking the deal but before installing, then that avoids the problem.

In any case. That’s largely solved today. Usually there’s some back-out option before the agreement is triggered.

I asked a very similar question a few months ago. While I don’t fully understand it, the TOS would be what’s taken in to account and not the copyright itself. I don’t fully understand it myself, especially in regards to things produced by the US government when someone takes something from them and then slaps a copyright claim on it.

The reason is that it’s not a copyright question. It’s a services contract question. So it very well may be irrelevant whether anyone holds a valid copyright interest. It comes down to what you agreed to when you clicked on the content.

You can easily give away through contract any rights that you otherwise might have had under copyright.

So it’s not productive to get mad at copyright law in these situations, because the cause of the frustration is contract law.

Heh, those are one of my pet peeves. When I get an email like this, I forward it to several dozen random contacts along with the original sender. So far I have not been arrested or sued.

See, this is what I don’t understand and why I dropped it in the last thread. I get what copyright is, and I mostly understand TOS. What I don’t get, and I see it all the time, is how someone can say in their TOS, “We own the copyright on this product. By downloading this file you agree we own the copyright and are not allowed to give away or sell it.” So right in the TOS they claim the copyright.

That is where I get lost. I see it enough. I make charts for the US government. We do not copyright them as we’re not allowed to. But I see companies who take our files, put them on their website, do not change anything about them, then claim to own the copyright on them because it says so in their TOS.

And here’s one site that does just that, takes US government charts and says they own it.:

That’s what I don’t get, they asset ownership to everything on their site. I’ve seen enough of them where a company takes a government file and claims copyright in the TOS, either in downloading it, or in some cases buying it.

Whether or not their claim of ownership under copyright law might be irrelevant so long as you agree to support their claim. Presumably, they don’t have to give you access to content through their service.

You can go directly to the government to get it. You want it from them because it represents a convenience. In other words, you might have the right to access the information for free under copyright law, but you don’t have the right under copyright law to access their server to get it. So, when they do grant you access, they’re giving you something of value.

And when you offer something of value to someone, you have the right under contract law to ask for something of value in return. In these cases, it might be that if you accept their service, then you won’t dispute their claim to copyright.

That doesn’t change the underlying issue of whether or not they actually hold a valid copyright interest. But in exchange for value, you are giving up your right to challenge it. That’s the thing of value that the contract demands that you give in return.

Is that less confusing?

It doesn’t matter whether you agree that they hold copyright. What matters is whether they actually hold copyright.

You may or may not be allowed to give away or sell the digital copy, but that has nothing to do with copyright. That’s a licensing thing. If they hold bona fide copyright, then you may be entering a licensing agreement by downloading the file, and not sharing it may be a part of that agreement. If they don’t hold copyright and haven’t been licensed, themselves, to do so by the copyright holder, then they have no legal right to license the content, though they may be allowed to license the packaging or display.

Wrong. See my prior post. If they’re taking the copyright issue off the table with a contract, licensing copyright interests isn’t an issue. It’s a pure contract issue.

I’m not sure what part of my post you’re taking exception to.


It very well might not matter at all whether they actually hold copyright.