Copyfraud, Watermarks, and Terms of Use

[mhendo]

@jjakucyk

It’s where Bridgeman starts to lose relevance because it’s no longer a slavish reproduction, at least in their opinion.

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.

@jjakucyk

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.

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:

@Una_Persson

As I’ve posted before, I’ve done some research in this area (it was prompted by the actions of one of our fine, upstanding, salt-of-the-earth SDMB members who tried to sic a museum on me for committing “copyright infringement” with my online art gallery)…anyhow - to add to what you’ve said, I have been personally informed by two legal experts in the field, both who work for museums, that most museums and libraries fully believe that Bridgeman would be upheld, and they personally told me that the “general consensus” is to continue to put scarecrow text on web pages claiming copyright on slavish copies of 500 year-old works but without any means or methods to enforce the claim.

The OP might mail “History Reprinter” and ask them under what basis they make their claim of copyright and say that “no part of this book maybe reproduced in any way without permission.” Given my very long experience with people like this, they will likely claim:

1. That their “sweat of brow effort” is indeed copyrighted, and their lawyer is too busy to send their detailed citations to pirates and thieves.

2. That the DMCA allows them to make the claim.

3. That “the Patriot Act” allows them to make the claim.

4. That the “Berne Convention” allows them to make the claim.

5. That “their lawyer told them” and that’s that.

6. Each page is its own public domain work, and the book is a “discrete collection” of public domain works (the pages), therefore the collection is protected. I guess by that logic each brushstroke on a painting is a public domain work, thus the painting is a collection of public domain works.

7. Since a book or painting really is 2-D, in fact no 2-D item actually exists in our universe, it’s actually 3-D and thus not covered by Bridgeman.

(No shit, I’ve actually heard people claim (6) and (7).)

8. No reply (this happens about 50% of the time IME).

If you try to call their bluff by asking them who they paid royalties to when they made their copy of something like Othello, or who it was who gave them permission for slapping an art book down on a scanner to copy Boucher’s Jupiter and Callisto, they typically will give you one of the following answers:

1. That’s a trade secret or confidential.

2. Sorry, we don’t talk to pirates (or words to that effect).

3. No reply. (again, this happens about 50% of the time)

Further in support of mhendo, there has been no US case which I know of since Bridgeman where a person has lost where they have made a slavish copy of a 2-dimensional public domain work.