Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Owning A Copy Does Not Confer Copyright

with 5 comments

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.”

McCord Museum: A Museum for all Montrealers

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?

5 Responses

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  1. The original photo would be in the public domain, but a photograph take OF the photo could potentially be considered under copyright. The same is true of public buildings. Nobody can claim copyright on the pyramids, but you can most certainly claim copyright on a photo of the pyramids.

    Basically, they cannot prevent you from copying the glass plate, but they can prevent you from copying pictures THEY took OF the glass plate.


    October 10, 2012 at 9:54 pm

    • Even copyright law (so far) recognizes the difference between art and a copying. The reason the court granted Napoleon Sarony’s petition to have copyright protection extended to his photographs was because he set up the shot: told Oscar how to pose, what to wear, etc.

      “This is one of the most relevant copyright decisions for museums in years. A Federal district court in New York in November held that photographic reproductions of two-dimensional works, which themselves are in the public domain, do not have the requisite amount of originality to be protected by copyright.”
      Bridgeman Art Library v. Corel Corporation

      [Although the Bridgeman/Corel case was tried in American court, Bridgeman is from the UK and Corel was (at that time) Canadian.]

      *Proviso: Since copyright law is actually a state imposed monopoly, rather than a “right,” copyright law is whatever the lawmakers decide it to be; and it generally is changeable without notice.

      Laurel L. Russwurm

      October 11, 2012 at 1:19 am

      • You may be correct about photos of photos requiring extra content/creativity to be covered, but I don’t think a New York court has any voice in a Canadian copyright issue…


        October 11, 2012 at 1:50 am

        • Since it was successfully applied to Canadian work, I think it counts.

          Canadian copyright law should be made in Canada, but we’ve just seen our government pass copyright law made to please the American government (and the powerful copyright lobby).

          In a perfect world, there would be no copyright monopoly suppressing creativity.

          Laurel L. Russwurm

          October 11, 2012 at 2:17 am

        • Additional reading:
          CASES OF Interest: Bridgeman Art Library v. Corel Corporation a concise synopsis of the legal issues in the ground breaking public domain case, including discussion of the US court’s reconsideration of the case as under UK law.

          Commons:Reuse of PD-Art photographs is a look at Wikimedia policy, incorporating information about the application of copyright to public domain photographs in different jurisdictions around the world.

          Laurel L. Russwurm

          October 11, 2012 at 7:32 pm

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