Owning A Copy Does Not Confer Copyright
William Lyon Mackenzie King and friend on railway platform, Montreal, QC, about 1930
Anonyme – Anonymous
About 1930, 20th century
Silver salts on glass – Gelatin dry plate process
12 x 17 cm
Purchase from Napoleon Antiques
© McCord Museum
An anonymous person took this vintage photograph, which found its way to Napoleon Antiques.
Because one of the subjects of the photograph was a Canadian Prime Minister, William Lyon Mackenzie King, the photograph has some instrinsic value. It certainly isn’t a Karsh portrait, but either the photographer or the person who commissioned the photograph would be the copyright holder under Canadian law.
The fact we don’t know who that was makes this an “orphan work”.
When this photograph was sold to the McCord Museum, the antique shop had the right to sell the physical property of the photograph, but did not own the copyright.
The fact that the photograph wound up in an antique shop suggests an estate sale, so there is reason to believe the work may be in the public domain. 1930 was over eighty years ago, after all.
Clearly, though, Napoleon Antiques would have bought the physical photograph. The name of the photographer would most certainly been known had there been an assignment of copyright. And in 1930, Canadian copyright terms were much shorter than they are now.
Wikipedia tells us that the Canadian copyright term:
“For anonymous works, 50 years from publication
or 75 years from creation,
whichever is shorter.”
So how does the McCord Museum come to own copyright in this work? Clearly a photograph taken by an anonymous photographer in 1930 would be in the public domain now, so the McCord Museum can’t own the copyright.
If owning a physical copy of a work conferred copyright, well, anyone who bought a CD would be able to take down the recording artist’s MySpace page…
I really don’t have any problem with McCord, or any museum, educational facility or even private individual selling copies of historic works that they physically possess. This is an acceptable business model. But I do take issue when they lay claim to copyright of public domain images.
Because work in the public domain belongs to all of us. As our history belongs to all of us.
If McCord actually owned the copyright in these works, then placing a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 Canada (CC BY-NC-ND 2.5) would be reasonable, perhaps even generous.
But the museum does not own the intellectual property in this work. Since the image is in the public domain, placing such a notice is horrendously and unreasonably restrictive, and the McCord has absolutely no legal or moral right to impose such restrictions.
Worse, this is actually a case of copyfraud. I don’t think that is the McCord’s intent, considering that its founder:
“David Ross McCord wanted to make history accessible to all. His dream has become the McCord’s mission – a mission whose importance is reaffirmed each year by thousands of visitors.”
Locking up our history in copyright, preventing us from using historic works — works in the public domain — whether to create derivative works, or even commercially, is the very antithesis of making history “accessible to all”.
I don’t think David Ross McCord would approve, do you?