New York Public Library Digital Gallery and copyright problems

The NYPL Digital Gallery (currently unavailable due to high load) just released around 250,000 images on the Internet. Their FAQ states,

If something is in the public domain, it is unencumbered by any copyright whatsoever and can therefore be used in any publication or used commercially without getting permission from anyone, as there is no one to give permission. I asked for clarification and received boiler-plate text in response:

They seem to be taking the position that you are violating their Terms of Service by downloading image n if your intent is to use it for anything not considered “private use”. This doesn’t sound legal to me. Suppose I browse the images on their website, and I keep a cache of every website I ever visit on my computer (which is true). I now have in my possesion an image which is in the public domain on my computer, which I acquired in a legal manner. As this image is in the public domain I am free to distribute it, sell it, and publish it as I will because it is not encumbered by copyright.

Can someone set me straight. I’ve never studied copyright…i’m just a netizen

They’re charging you a usage fee; it has nothing to do with intellectual property. If you were to go down to 5th and 42nd and apply for a research permit at the NYPL, and you make copies of some old parchment stuff to put in your groundshaking book, the NYPL wants a (usually small) piece of the action. Same thing here, they’re just charging you for using their website instead of a physical archive.

If it’s a usage fee, why does it not apply to personal use? Whether I download an image to use as my desktop walpaper, print out and hang on actual wall, or to use in a publication, my usage of the website is the same.

Because the folks at the NYPL are super-nice guys, that’s why.

Most of this stuff wasn’t even available to regular schlubs off the street before today, as it was stored in the various special collections that you have to get special permission for.

The complication, though, is that they’re also making the images available for free. Suppose I go to their Web site and take a look at a picture just because I personally want to see what it looks like. As I read that boilerplate, that’s perfectly OK, since it’s completely private use, and I don’t have to pay the fee. Now, as a result of that action, I have a copy of that image in my browser cache, perfectly legally. Now suppose that, after viewing the picture and before cleaning out my cache, I decide I want to write a book for which that image would be relevant. So I pull the image out of my cache and make copies. As I understand the law, this is also legal and legitimate: I have a copy of a public-domain work in my posession, and I use it to make further copies.

So here I have an image which I ultimately got from the NYPL, and I’m selling copies of it, without ever having paid NYPL. At what point in this sequence of events, if at all, did I violate the user agreement?


The image is in the public domain. The NYPL’s copy of that image belongs to them. So does the digital representation of that image on their copyrighted web site. You have no rights, beside the personal usage rights they have given you, to use their copies of that image. The image your browser holds in its cache is still their copy. If you have your own copy of that image, legally obtained, you are free to use it in any publication that you wish.

Physical ownership of a material does not grant copyright ownership. Were I to buy one of Slug Signorino’s masterpieces, I would not own the copyright and would not have the right to reproduce or publish the work or to exhibit it for a fee.
If memory serves, unless a reproduction of a copyrighted image is substantially different from the original, it is not legally a new work and it cannot be copyrighted.

Unless I’m missing something, the library does not hold copyright on the physical originals, and cannot hold copyright on the reproductions.

If they do not hold copyright (see above), or the work is in the public domain, they have no standing to restrict usage.

I do know that you cannot copyright an unartistic photo or scan of a work already in the public domain, so I believe this is out.

I asked for even further clarification and received more boilerplate text:

I am grateful for the service they are offering, however, I am also interested in the straight dope.

I should not have included the word copyright when talking about their site, because I did not mean for you to think I was saying they owned copyright to the image. What the do have is ownership of their copy of the image, and can restrict usage of that copy. If you own a book that is in the public domain, you do not own the copyright of the work, but you still own that copy. Nobody can take your copy, just because the work is in the public domain, without your permission.

I don’t understand what your saying. Suppose someone created an infinite pile of public domain book n, and put it in an easily accessible place with a sign that says “You are free to take this book, use it as toilet paper, or any other use so long as you do not republish or sell it”. I say ok, and walk over and grab a copy of n. I now own a copy of a public domain n and I am free to republish it or sell it as I will, as I acquired it in a legal way.

Didn’t I just say that?

However, that example doesn’t hold here. The libraries digital copy is located on their servers. By downloading the file, you create a new copy. I see no way in which the library could legally claim physical ownership of this copy. Their copy is on their servers. The new one is on an entirely different computers.

They have no claim to copyright on their copy, so they have no legal standing to keep me from creating as many new copies as I want and doing whatever I want with them.

When did NYPL say they were giving the image to you? Fair use allows you to do what they say you can do. They never say, “here, we are giving you this image.” They say you can download it only for what is covered under fair use. Otherwise, you can’t. If you say that once you download it you own it, and now you can do what you please, I would say that acquiring ownership was under false pretences, and thus invalid.

I will say, though, that most libraries do not worry too much about this, because the web image is not usually suited for publication in a printed medium. It looks good on the screen, but not at the higher print resolution. To get the higher quality image you have to pay the fee.

They have ownership of their digital copy. Why do you think you can just make a copy of it? Just putting it on display on the web does not relinquish ownership rights.

When they said it was in the public domain. Anybody can legally copy a public domain work. Physical ownership of the new copy is mine.

Fair use applies only to works protected by copyright.

They say it is in the public domain. Anybody can reproduce works in the public domain. The library does not physically own the new copy.

The works are not protected by copyright. Nor are they the copyright holders. They have no legal standing to restrict what I do with my copies.

The works are in the public domain. I am using my own copies. The library has no legal standing to dictate what I do with them.

I gained physical ownership of my copy when I made my copy. The work is in the public domain. I am not using the library’s copy. They have no legal standing to restrict what I do with my copies.

They own their physical copy of the file. Unless substantially different, reproductions of works are not new works and not covered by copyright. EG A photograph of one of Slug’s grand illustrations is not a new work and cannot be copyrighted by the photographer. It is a reproduction of the original ink and paper masterpiece and the copyright is Slug’s (ooh. Wait a minute. It may be classified as work for hire in which case the copyright might actually be Cecil’s or the Reader’s)

If the original works are in the public domain, the digital reproductions of them are also in the public domain. The library has the same physical rights and ownership of these digital images. I cannot take their copy. But, I can make my own copy. The digital images are not new works covered by copyright, they are reproductions of public domain works. The library is not relinquishing copyright. They never had it.

I don’t know how to say this any clearer.

The library does not hold copyright. The images are public domain.

The library can control use of the copies they own, both the physical copies and the files.

Anybody may legally make a new copy. The library does not own these copies and has no legal control over them.

So I can come over and make a copy of anything you own that is in the public domain, even if you don’t want me to?

Look, NYPL’s position is that they own the copy of the image, and can say what happens to it:

“NYPL provides free and open access to its Digital Gallery and images may be freely downloaded for personal, research and study purposes only. However, as the physical rights holder of this material most of which is in the public domain for copyright purposes, the Library charges a usage fee if images are to be used in any nonprofit or commercial publication, broadcast, web site, exhibition, promotional material, etc. The usage fee is not a copyright fee. You are free to obtain a copy of these images from a source other than NYPL.”

I agree. You don’t. The library knows it is not going to waste time going after someone who takes their image from the web, it is not worth it in most cases. My library has sued people who have taken our images, and won, but they were copyrighted, not public domain. It will probably never be tested in court on a public domain case.

Straw man. That would be a stranger visiting my house. The case at hand is viewing a web site. Additionally, with physical copies handling causes minor damage and may cause major damage. Copying an image file cause no wear or damage to the original.

Second, the right to restrict reproduction of a work is called- copyright! If I don’t have copyright of a work, I have no legal standing to prevent you from copying it.

They do own both the physical copy and the image file located on their servers. If a new copy of that file is made, it belongs to the person who created it.

It is not their image. The image is in the public domain. It is their copy, which is on their servers. New copies on user’s computers are not owned by the library.

That is a different situation. Reproducing copyrighted material without the consent of the copyright holder is infringement and illegal. Again, the library does not hold copyright on these images. They are in the public domain. Digital reproductions of the originals are not legally considered new works and are not granted their own copyrights. Digital reproductions of a public domain work are in the public domain. Any person can legally copy, publish etc a public domain work.

Isn’t it true then, that by downloading their image for personal use, you are implicitly entering into a contract with them; a contract that forbids you to subsequently copy the image for non-commercial use?

I do think that ownership of an item (not copyright of the work) allows me to prevent you from making a copy of my item. NYPL thinks this too. You may have the right to make a copy of a work because it is in the public domain, but that does not give you the right to make it from my copy if I don’t want you to. You may make it from someone else’s copy, if they don’t mind.

I think my property rights over my item hold sway over your right to make a copy in general.

NYPL puts their usage notice on the web because they think they can make it stand up in court. You disagree with what they are basing it on. Until it goes to court, we will not know.