At the Intersection of Copyright and Contract

By John Ottaviani

A long simmering debate among museums and other visual archivists is whether (and how) one can charge for digital images of works in a collection that may or may not be covered by copyright any longer. The issue presented in a real life dispute last week. A non-profit organization, public.resource.org, has challenged the copyrights and restrictions on images being sold by the Smithsonian Institution. The non-profit group has not resorted to court action (at least not yet). Rather, the group downloaded over 6,000 photos online and posted them to the free-photo-sharing website flickr.com.

The debate squarely presents the question of how and whether digital archives can protect, and perhaps generate revenue from, valuable images, which may no longer be covered by copyright. The Smithsonian’s on-line terms of use in general permit fair use, and permit use of the materials for non-commercial educational purposes. However, the terms on the website explicitly prohibit commercial publication or exploitation of the photos and other content without obtaining prior written permission from the Smithsonian Institution. Can the Smithsonian protect works that are no longer protected by copyright with contractual restrictions?

Generally, the archives and museums have felt that one could impose contractual restrictions on photographs and images that the entity owned. If one owns a painting that is no longer under copyright, one can still control who can view the painting. In fact, one does not need to make it available to the general public at all. Here, the argument is that control of the digital file (which may have cost the institution a great deal of time and money to create) is analogous to control of the physical object. Because we do not need to make it available to the public at all, then if we do, we can decide under what terms.

Of course, the opposing view is that images that are no longer covered by copyright should be publicly available to all or any purpose.

Many archives, libraries and museums are dedicated to making information in their collections as widely available as possible. Yet the staff is pushed by their governing bodies to try to use the collections to raise revenue. The debate presented by the Smithsonian dispute mirrors this internal debate.

We have known since the Federal Circuit’s decision in Bowers v. Baystate Technologies, Inc. that the Copyright Act does not pre-empt contractual restrictions on reverse engineering. This case may explore the boundaries of that decision and how far contract restrictions can go.

The Smithsonian debate has other overtones, which may not be applicable to private museums and archives. One of the issues in dispute is whether works created by Smithsonian employees are considered to be in the public domain as works made by federal government employees. We will need to see whether any precedent in this area is limited to government works, or spills over into the private sector. More likely, the parties will settle the matter privately. Hopefully, this will not expose the archives of others.

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