A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain. Such claims are unlawful, at least under US and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce. Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.
The term copyfraud was coined by Jason Mazzone, a professor of law at the University of Illinois."Jason Mazzone, Professor, Lynn H. Murray Faculty Scholar in Law" , University of Illinois College of Law, accessed June 17, 2015Katyal, Sonia K. and Simone C. Ross. "Can technoheritage be owned?" , The Boston Globe, May 1, 2016 Because copyfraud carries little or no oversight by authorities and few legal consequences, it exists on a massive scale, with millions of works in the public domain falsely labelled as copyrighted. Payments are therefore unnecessarily made by businesses and individuals for licensing fees. Mazzone states that copyfraud stifles valid reproduction of free material, discourages innovation and undermines free speech rights.Mazzone, Jason. "Too Quick to Copyright", Legal Times, volume 26, no. 46 Other legal scholars have suggested public and private remedies, and a few cases have been brought involving copyfraud.
Definition Mazzone describes copyfraud as: Claiming copyright ownership of public domain material. Imposition by a copyright owner of restrictions beyond what the law allows. Claiming copyright ownership on the basis of ownership of copies or archives. Attaching copyright notices to a public domain work converted to a different medium.
Legal issues False claims of copyright
According to copyright experts Jason Mazzone and Stephen Fishman, a massive amount of works in the public domain are reprinted and sold by large publishers that state or imply they own copyrights in those works.Fishman, Stephen. The Public Domain, Nolo (2006), pp. 24–29 While selling copies of public domain works is legal, claiming or implying ownership of a copyright in those works can amount to fraud.
Mazzone notes that although the US government protects copyrights, it offers little protection to works in the public domain.Mazzone, Jason. Copyfraud, Stanford Law Books (2011) Consequently, false claims of copyright over public domain works (copyfraud) are common. The profits earned by publishers falsely claiming copyrights have been immense. Section 506(c) of United States Code (USC) Title 17 prohibits three distinct acts: (1) placing a false notice of copyright on an article; (2) publicly distributing articles which bear a false copyright notice; and (3) importing for public distribution articles which bear a false copyright notice. The prosecution must prove that the act alleged was committed "with fraudulent intent". Violations of sections 506(c) and 506(d) are each punishable by a fine of up to $2,500. No private right of action exists under either of these provisions."Protection of Copyright Notices – 17 USC § 506(c) and 506(d)", Justice.gov, accessed April 2, 2019 No company has ever been prosecuted for violating this law.
Mazzone argues that copyfraud is usually successful because there are few and weak laws criminalizing false statements about copyrights, lax enforcement of such laws, few people who are competent to give legal advice on the copyright status of material and few people willing to risk a lawsuit to resist the fraudulent licensing fees that resellers demand.
Restricting use with licenses
Companies that sell public domain material under false claims of copyright often require the buyer to agree to a contract commonly referred to as a license. Many such licenses for material bought online require a buyer to click a button to "accept" their terms before they can access the material. Book publishers, both hard copy and e-books, sometimes include a license-like statement in compilations of public domain material purporting to restrict how the buyer can use the printed material. For instance, Dover Publications, which publishes collections of public domain clip art, often includes statements purporting to limit how the illustrations can be used. Fishman states that while the seller cannot sue successfully for copyright infringement under federal law, they can sue for breach of contract under the license.
Public domain photos by Walker Evans and Dorothea Lange, available for unrestricted downloads from the Library of Congress, are also available from Getty Images after agreeing to their terms and paying license fees of up to $5,000 for a six-month term. When photographer Carol M. Highsmith sued Getty Images for asserting they owned copyrights to photos she donated to the public domain, Getty admitted that her images were in the public domain, but said it nonetheless had a right to charge a fee for distributing the material, since "Distributing and providing access to public domain content is different from asserting ownership of it".
Fishman believes that because US federal law preempts state law when it conflicts with federal law, such copyright-like licenses should be unenforceable. However, the first two cases dealing with violations of such licenses decided that the licenses were enforceable, even though the material used was in the public domain: see ProCD, Inc. v. Zeidenberg (1996) and Matthew Bender v. Jurisline (2000).Matthew Bender v. Jurisline, 91 F.Supp.2d 677 (2000)
Types of material Printed works
A collection of public domain material, whether scanned and digitized, or reprinted, only protects the arrangement of the material, but not the individual works collected."Copyright in Derivative Works and Compilations", "US Copyright Office Circular 14", accessed April 5, 2019 However, publishers of many public domain collections will nonetheless place a copyright notice covering the entire publication.
Most of the text, illustrations and photos published by the US government are in the public domain and free from copyright. Some exceptions might include a publication that includes copyrighted material, such as non-government photos. But many publishers include a copyright notice on reproduced government documents, such as one on the Warren Report.Warren Commission Report, United States Warren Commission, Barnes & Noble Books copyright notice Knowing that the penalty for making a false copyright claim on a copied government publication is small, some publishers simply ignore the laws.
Digital libraries
Publishers have often placed copyright notices and restrictions on their reproductions of public domain artwork and photos. However, there is no copyright for reproduction, whether by photograph or even a painted reproduction, since there is no original creativity. One famous court case which explained that was Bridgeman Art Library v. Corel Corp. in 1999: The "skill, labor or judgment merely in the process of copying cannot confer originality"."Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)", Cornell Law School Despite the clear ruling of a US federal court, however, Mazzone notes that the Bridgeman Art Library has been "undeterred by its loss in court and continues to assert copyright in reproductions" of countless public domain works by famous artists of previous centuries, such as Camille Pissarro.Pissarro's "The Boulevard Montmartre at Night", 1897
Mazzone also uses the example of Corbis, founded by Bill Gates, which was merged with Getty Images, a similar stock photo company. Getty has over 200 million items for sale, most of which have been scanned and digitized to be sold and distributed online. Its vast collection includes many images of two-dimensional public domain works. Other digital libraries, including ARTstor and Art Resource, have claimed copyright over images they supply and imposed restrictions on how the images can be used.
Original artworks, manuscripts and archives Besides online digital libraries, a number of libraries, archives and museums which hold original manuscripts, photos and fine art, have claimed to have copyright over copies they make of those items because they possess the original. However, many of those items were created before the 20th century and have become part of the public domain. One example that Mazzone gives is that of the American Antiquarian Society, which has a large archive of early American documents. Its terms and conditions for obtaining a copy of any of those documents require agreeing to their license, along with payment.American Antiquarian Society license
Another repository, the New York State Historical Association's Fenimore Art Museum in New York, similarly requires that a user of its archive first agree to their terms before visiting or reproducing anything from its collection of nineteenth and early 20th century photographs, most of which have long become part of the public domain.Fenimore Art Museum terms and conditions
According to Mazzone, archives and museums typically assert ownership of copyrights where none exist, and wrongly require users to agree to their license and terms and conditions. Former president of the Society of American Archivists, Peter Hirtle, has written that "many repositories would like to maintain a kind of quasi-copyright-like control over the further use of materials in their holding, comparable to the monopoly granted to a copyright owner."Hirtle Peter."Archives or Assets?", The American Archivist: Fall/Winter 2003, Vol. 66, No. 2, pp. 235-247 Mazzone, for one, finds the trend of false claims of copyright by public, taxpayer-supported institutions, especially troubling: "We should be able to expect in return that public domain works be left in the public domain." He credits the Library of Congress among the shrinking list of archives that properly states whether a work is copyrighted.
The Museum of Fine Arts, Boston, for example, includes in its vast collection of artworks many from the nineteenth century. Although they have become part of the public domain, the museum claims they own the copyrights to them and therefore requires a visitor to agree to its terms before obtaining a copy of any works, i.e.: "The Images are not simple reproductions of the works depicted and are protected by copyright ... The MFA regularly makes images available for reproduction and publication in, for example, research papers and textbooks".MFA-Boston Terms and Conditions
Public domain films The owners of the actual physical copies of public domain footage often impose restrictions on its use along with charging licensing fees. The result is that documentary filmmakers have in many cases found it nearly impossible to either make a film or else have dropped projects entirely. In one example, filmmaker Gordon Quinn of Kartemquin Films in Chicago learned that the public domain federal government footage he wanted to use in a film was considered copyrighted by a director who then wanted payment to use it. Similarly, Stanford professor Jan Krawitz needed to incorporate a public domain clip into an instructional film, but the archive that had the film made no distinction between copyrighted works and public domain works, thereby requiring her to pay a substantial fee.