It isn’t their image. Reproduction of public domain work= public domain work. By downloading, you create a new copy which the library does not have physical rights to.
Not unless they had a click through ‘By downloading this file I…’ and an accept button. However, there are great debats about the status of click through licences and contracts.
Doc. It would seem that Mangetout has a good point here. You entered into a contract to not reuse that image.
Looks like this one is a job for a legal expert.
I’m nopt so sure that contracts always require your express agreement; aren’t there cases where continued use of a product/service constitutes acceptance of their posted standard terms?
Oh sure, just because he said it clearly, concisely and in a way that everyone understood. 
I usually sign contracts, or am at least aware of having agreed to them.
Take this picture of Rabbit-man for instance. The first thing that stands out to me about that page is that the image is from 1820. My knowledge of copyright tells me that this work is in the public domain. By the time you have seen this image you have already downloaded it to your computer and have obviously entered no contract. This means you have your own legally obtained copy of a public domain image. You violated no law by clicking on that link and receiving the content that was freely given to you under no terms or restrictions that you are aware of.
There is a small notice on the bottom which says * All rights reserved*. Since we know that all images from 1820 are in the public domain and therefore not under copyright, we know they dont have any rights to reserve regarding that image, and that they are simply protecting their text, page layout, logo etcetera.
Again, if you just clicked that link, you now own a copy of a public domain work that was given to you without any restrictions.
(I just want to add that I am simply extending a line of reasoning and am myself unsure of its soundness…which is why I created this thread! 
)
Library Boy, please Search on this Board for the terms “Bridgeman” and “Corel”, especially threads where I’ve posted. Read the threads I’ve posted on it where I’ve provided numerous links to experts in the field, both legal and library-wise, who believe that if it went to the USSC it would be upheld.
The NYPL can say all they want to that they “own” that slavish copy of a PD work; it’s not true and I’d love to see them try to take someone to court.
They can claim that you are entering into a “contract” by merely visiting the site, thus making yourself subject to their terms and conditions. Without even a click-through agreement on the terms of service, any sort of user tracking, validation, verification, or any sort of user account - not to mention any end-use attached contract or T&Cs, however, there is no legal precedent for their claim. And the Uniform Commercial Code doesn’t back them up either, IIRC.
In fact, alterego, in addition to mailing them back and asking them if they’ve heard of that embarassing case of BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36F. Supp. 2d 191 (S.D.N.Y., 1999), which was in their jurisdiction IIRC, you might direct their attention to the portion of US Copyright Code dealing with fraudulent claim of copyright:
As much as I enjoy slapping people who grab onto public domain works and throw out legal scarecrows to cow others, I will defend the NYPL on one point, to be fair. A compilation of public domain works can be copyrightable, so a mass download of all the works of a large section of the website, or the entire website, could be considered a copyright breach. To my knowledge this has never been tested in any court for the specific case of a website or online art gallery of public domain works.
I did, and this is what I found:
Bridgeman was claiming copyright of their scans. NYPL is claiming ownership of their copies. There is a difference to the approach. You may feel their argument is not valid, but I see nothing in your post or links that talks about property/ownership rights, which NYPL is claiming, rather than copyright, which they are not.
Once again, my point is that NYPL is saying, yes, this work is in the public domain, but you can’t use our copy of it, as we are claiming ownership rights of the copy, not copyright of the work. I am sure they worded their statement that way because of Bridgeman.
As to arguing the point, I am done. I don’t work for NYPL, and my library does not have public domain images in their online database. It was never my intent to get into whether the NYPL’s policy will hold up in court, but rather to try to explain why they felt they were entitled to charge for public domain images, which is what I took the OP’s question to be.
If that is NYPL’s argument, I find it very strange. They claim they “own” the copy of the public domain item, which is in a media where there is no burden to them that copies are made.
The first issue is that they are providing the scans for ready distribution without even so much as a registration. It is a slavish copy of a public domain work. They provide this copy to anyone who wants it, without tracking or control of distribution. They’re not charging for an account, nor for bandwidth, nor server time or CPU time. So once it’s out there, it’s out there.
Now, once it’s left their domain, whose copy is it? How do they retain ownership of the item? What is the “item” at that point? They own the file on their server in that it’s data on their hard drive. But once they provide the file for distribution and it’s downloaded, it’s now my data on my server and my hard drive. The file on my computer is on my magnetic media, on my hard drive, in my computer. They now have no possible “physical” claim, and no claim at all except copyright, which Bridgeman, in their own Circuit, denies them.
Another test is to consider this hypothetica yet very common set of circumstances - Say someone copies a Public Domain item from the NYPL and puts it on his free art server. I, not even knowing that the NYPL exists, find this item and say “Oh look, a scan of a work from 1822. I know it’s Public Domain in the US, so I can copy it.” I have no idea that it came from the NYPL. I put it on my server now, as a free artwork. The NYPL finds it on my server. How do they claim ownership of that file? What actual thing do they own? Assuming it’s not watermarked, how do they claim their “property”? They can’t - there is no chain of ownership they are privy to, and they cannot claim that “my” file is “theirs”. They can even match the pixel and byte sizes, but it’s not conclusive. What if I did a lossless JPG optimization on it? They’d never match bytes then. What if I resized it? Gamma corrected?
With technology like this there is no ownership of this file, only the IP. And they don’t own the IP, thus they have no case.
Even the RIAA in its MP3 suits, and the MPAA in its Bittorrent suits, are not suing people over theft of an “object” but over copyright infringement.
But I’ll assume I could be wrong, as while I’m a student of this tiny branch of copyright law, I certainly don’t know everything about it. Can you provide one single US case which says that a person can own and restrict a public domain, non-trademarked, non-trade-secreted file, and restrict usage after distribution of the slavish copy of the file? In my searches, I cannot find anything of the sort. But I’m open to being enlightened.
And all this ignores the other question of how they have made a one-sided contract with not even so much as a click-through or registration agreement. Without any deliberate acknowledgement on my part, I do not know how I’ve agreed to this, or how they can prove I agreed to it. If they have no ability of proving I agreed or actively did not agree to it, then where’s their case? I know other countries have more flexibility in enacting one-sided agreements, but AFAIK the US does not. But once again, I could be wrong…but I don’t think so.
I know of no legal principle that the NYPL could use to enter court with on the public domain works. I suppose anyone can sue anyone over anything, so they can try. I applaud the NYPL and praise them heartily for their effort - I am not ungrateful for their contribution to the sea of knowledge out there, not in the least. I applaud the libraries and art galleries that take the effort to share knowledge with the rest of the world. But if they’re going to take those steps and make that committment, they need to play by the Rules. The public domain is not a Profit Center nor a Business Case. Public libraries and galleries are there to preserve and share and display art for the people, not to be a commercial outlet.
Except they’re not preventing us from making copies. Indeed, they’re facilitating our making of copies. If, for some reason, they kept their vast database of public-domain images locked away somewhere on a password-protected server to which only library administration had access, then yes, in that case, you could say they’re preventing us from making copies. If I somehow circumvented their security, broke into their server, and downloaded the images that way, then I could see that they would have a case. But they’re making them freely available. What they’re doing is the equivalent of putting a copy machine in a room with old documents, available to the public, and putting up a sign saying “Feel free to make copies of these and take the copies home”. The only difference is that here, they don’t have to pay for paper and toner, and they don’t get any wear and tear on their originals.
They may arguably own their copies, since those copies reside on a hard drive they own. But I own my hard drive, and once I visit their page, my copy rests on my hard drive. They are not the same copy. If they are going to claim ownership of their copy, then by the same justification, I can claim ownership of my copy.
Yeah, I know, I said I was done. But I just want to clarify a couple of things, and respond to some of Una Persson’s very good points.
Let me restate that I do not work for NYPL. My opinion of their position is just that, my opinion. I do, however, base that opinion not only on their stated policy and their communication with the OP (they never, that I can see, claim copyright, but “physical rights”), but also my own work in the field of online library collections.
Well, there are digital watermarks (Digimarc being the best known) that will stay with the file, no mater how many times it is copied. That said, I have no idea if NYPL is using them.
However, the important point is that libraries know this is unenforceable. In NYPL’s communication to Alterego, they even say: “Below is the Library’s stated policy. You may honor it or not as you see fit.”
So why do they do it? So they can put some usage message on the site that says you are not to take these images for commercial use. As you point out, they can’t claim they are copyrighted, because they can be liable for fines, but they can claim property rights, even if they know they can’t enforce it. Their real protection, as I stated earlier, is that the web images are really not suitable for quality reproduction.
They do this because they want to be compensated, when someone wants commercial usage of the images, for the work and money they have invested.
Should they? I will get back to this in a minute.
I’m sure you are not wrong. NYPL would never bring a case to court involving a public domain image because a) it is not worth their time for a few (low quality) images here and there. b) They know they will stand a good chance of losing, and thus have to take down or modify their usage statement. c) as you said, they are protected from large-scale copying because their unique collection of public domain images and its presentation is already protected by existing law.
As an aside, I actually think there is merit in the idea that a digital image could have the same property rights as the physical original. If a library has a print of an image in the public domain, they are under no legal obligation to provide you with a copy of that image just because it is public domain. Just because they can’t stop you from using the image, does not mean they have to let you copy their version of it. The are free to keep it in a drawer and say no. I think that same protection can extend to digital images. Just because you can easily copy it with no trace, or effort by the library, does not in my mind equal the right to do so. And I am very aware that you can make the argument that I give up these rights when I display it on the internet. I am also comfortable saying that I bet 90% of judges would rule against my viewpoint. It is, however, still my opinion.
But the point is that while no court has ruled for the viewpoint that the owner of the digital images has property rights to them, no court that I am aware of has ruled the don’t, for the simple fact that it has never been tried. And as long as it hasn’t, libraries are free to keep putting up notices that claim this right. And you are free to ignore them, as NYPL all but states in their message.
So, back again to the point of this unenforcaable statement.
They are doing this for the collection and sharing of knowledge. They will make no effort to get any money from you, beyond actual reproduction cost if you order a high quality print, if you are using the images for research or personal use. They also do not feel like they should not be used as a free photo service for commercial use. If you want an image for commercial use, they will charge you to provide it, just like any photo service will, even for public domain images. They will also put notices on their website to try and discourage you from taking a free one, even if they know they won’t do anything about it if you do. (Copyright images aside. We will come after you on those, even for just one.)
In this time of disappering Library budgets, I do not think that that is an unreasonable position. Libraries were designed to give access to knowledge for the people, not as a cheap resource for businesses. And I say that being pretty pro-business for the most part. Whether you agree with that is another debate.
And so to bed.
The word above should be “disappearing”.
Damn, this is addictive.
I don’t equate not preventing you from making copies with giving you permission to make copies. I have to post a version of the image on the site so you can see it and decide if it is the image you are looking for. That does not, in my mind, make it any less my image. And I am not putting up a sign that says “Feel free to make copies of these and take the copies home”, but one that says “Don’t make copies of my copy if you are going to publish them.”
But, as I stated in my second to last “last” post, I freely admit that that is, to be kind, a minority viewpoint.
But I cannot view an image on your website without making a copy of it. The data is in fact copied many times over as it is routed from your computer to mine. How do you distinguish putting an image up for people to view from putting an image up for people to copy?
After doing a days worth of reading this excellent conversation and asking questions here is the issue as I understand it: The NYPL is not claiming copyright status over these images. They make that very clear - if they are old enough they are in the public domain as expected. They are, however, claiming that by even viewing the image in your web browser you are entering a legally binding contract with them which states that you will only use it for private purposes. Until someone takes them to court, they can do this. This is shaky ground at best. If you open your hand and someone sets a photo from 1820 in it along with a contract, all you know is that you have a public domain photo. You never agreed to the contract! If you take a picture of said photo, post it on the Internet, I somehow browse to it and then publish it in my up-and-coming best-seller, the law was never broken.
So the issue is not about the sort of copyright intended to protect creative expression - they are not claiming that. They are claiming that you cannot make a further copy of their physical copy of the image because they have ownership of it and can therefore make the rules about what you can and cannot do with their physical property, which, at first glance, sounds legitimate.
It becomes shaky ground when you ask the question, “When did I explicitly agree to follow these rules?” The situation would be vastly different in any other copyright status - but this is the public domain and in order to claim copy rights over an image which, by law, explicitly has none, it would make sense that you should have at the very least a digital signature showing that a person gave you those rights.
(I believe I meant electronic signature)
I claim that by reading my post you are obligated to send me $20. This is legally binding contract, and since you are not “the Chicago Reader, Inc., and its successors” as mentioned in the footer of this page, please send $20 to my Paypal account.
Until someone takes me to court, I can claim that. Perhaps even afterwards if I don’t have an injunction against me. Now, how is my claim more or less specious than the NYPL’s claim?
And as I said before, with electronic media there is a very difficult to impossible chain of transfer and/or ownership. The only thing remaining is IP claim, which I’ve nullified. So they have no enforcement ability even if they are in the right.
On what legal basis does it sound legitimate to you? If you own an old building or a house which is visible to the public, can you sue to prevent someone from taking a photograph of it? The NYPL is making the scan of their public domain property freely visible (a scanner is just a flatbed digital camera, after all). We’re doing the equivalent of taking pictures of it - identical slavishly-copied pictures, but that’s not a factor here due to the PD status.
What physical item do they own in the form of the scan? They “own” code in magnetic media on their server which they freely put out to be copied. If I copy these media, then I have not taken anything from them or damaged their copy. Their only fallback is copyright, and they have no case. This is related to but decidedly different than the frequent MP3 copying arguments on here.
I’m waiting for someone to post a cite to show that a person can claim that their slavishly-copied public domain work is real “property” which is different from all other property and under total control of the scanner. Just because it feels like someone “owns” a scan as real property, and that even if that’s true they control any and all uses or related uses of said property, doesn’t mean they do.
I think that even the NYPL knows its claims are just smoke, mirrors and wishful thinking.
I’ve got a new, but related, question:
It has often been stated that works and images produced before 1923 are in the public domain. But is that really always the case? Doesn’t that rule of thumb only apply to works and images that have already been “published” or otherwise exposed to public eyes?
For example, if my grandfather wrote a poem in 1920, hid it away in a cigar box in the attic, and willed his grandchildren all his assets, could I not publish the work and claim valid copyright?
Or another example: If the NYPL puts previously unpublished images (like the photos from its own archive showing the NYPL’s early-20th century construction) on the web, could they not claim active copyright?
The answer to this depends on the date the work was created.
See this table on Public Domain Dates for some footnoted assistance.