While museums in some other countries like to try to claim that they can create a new copyright on the digital scan of a public domain image, in the U.S. it is generally considered settled law that museums cannot create such a new copyright. Public domain is the public domain….
Thus, while it’s exciting to see that the famed Metropolitan Museum of Art in New York has released a treasure trove of high-res images of public domain works for people to search and download, it’s ridiculous and depressing that they’re effectively claiming copyright over them, even while stating the images are in the public domain. And, no, this isn’t just a case where the Met’s terms and conditions discussing copyright don’t even take into account the possibility that some works may be in the public domain. It has a separate section, specifically labeled “public domain” — and then tries to tell you what you can and cannot do with those works:
Images of Works of Art that are in the Public Domain. Images of works of art that the Museum believes to be in the public domain which are identified as Open Access for Scholarly Content (OASC) on the Site may be downloaded for limited non-commercial, educational, and personal use only, or for fair use as defined in the United States copyright laws. In addition, authorized non-commercial uses for such images shall include scholarly publications in any media. Users must, however, cite the author and source of such images, and the citations should include the URL “www.metmuseum.org,” but not in any way that implies endorsement of the user or the user’s use of the images.
Except that’s not true. You can’t put any restrictions on works in the public domain. They can be used for commercial use. Fair use doesn’t even apply, because there is no copyright. Users do not have to cite the author and source, though it might be a nice thing to do.
You would hope that the folks at a museum like the Met would actually understand the basics of copyright like this. However, it’s yet another indication of how we now live in a “permission culture” where even people who should understand what the public domain is, don’t seem to get it. Last year we wrote about a museum in Amsterdam that did things right: offering up not just high-res images of public domain works, but additional tools to help the public do more things with those works. The Met should take some notes from the folks over at the Rijksmuseum.
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