by Nancy Wolff, DMLA Counsel
Answer: YES, there are no restrictions on any use of public domain images, including making them available to users for a fee.
Since Carol Highsmith filed a claim in federal court last week against several DMLA members under Section 1202 of the Copyright Act based on images licensed by such members that she provided to the Library of Congress LOC and were displayed on the LOC website as “unrestricted”, I have received many inquiries about the meaning of “what is public domain” and whether can you license a digital file or sell a work of art that is in the public domain.
First, when any work is in the public domain, anyone can use it for any purpose. Works subject to copyright can be in the public domain because copyright expired or is forfeited; the work is a US government work under US copyright law or the work is dedicated to the public (there is now even a Creative Commons license to dedicate a work to the public).
The purpose of limits on copyright is that the public domain benefits the public and serves the public good. Once a work is in the public domain, anyone can make a productive use of it, including commercializing the work. This applies to all works that can be under copyright, such as images, books and music. You can still buy a book of Shakespeare’s plays published by numerous publishers. Or you can go to the library and painstakingly photocopy each page. You have a choice. The same is true with images.
Many DMLA members specialize in or include archival material in their image collections and make theses images available to publishers and other users and charge a fee. There is nothing improper or illegal about that. These archives or the collectors have made substantial investments in scanning, enhancing, keywording and making their copy of the public domain work easily searchable and usable. So a publisher can find a copy of an image from another source, but it may be low quality, it may only be in print form and it may not be easy to locate and use. With tight publishing deadlines, having a source of an image that is readily available and searchable adds value and is a benefit to users.
Nor is it improper to call the fee charged to use a public domain image a “license” A license merely means permission to use “my copy”. You can have a license that applies to the access and use of a copy, or it can apply to any sort of IP license such as copyright, trademark or patent. But the term only refers to permission and it is not limited to an IP right. So archives and image libraries that have some historical out of copyright works can license those works to a user for a specific purpose because those are the contract terms a user agrees to.
More on Section 1202 later. Section 1202 relates to the removal or alteration to defined copyright management information with the intent to cause or facilitate an infringement. A recent case was just decided under this section of the Copyright Act and we published a blog here.