Who owns this pre-1923 image from an old Sears catalog?
I sure don’t want my wonderful fun-laden website to turn into an on-going tutorial on copyright issues, but several times in the last few years, people have asked me, “Isn’t an image from an old catalog the property of the creator of that catalog?”
With the blog I published on January 29th, that question has arisen again.
With a caveat that the following is *my* understanding of the vagaries and complexities of intellectual property as it relates to pre-1923 images, I’ll give this a shot, but bear in mind…
I am just a lowly writer. My husband is the smarty-pants lawyer, but even he is reluctant to render an opinion on intellectual property issues because these laws are intricate, complicated and forever changing.
With that in mind, here goes.
The image shown above is pre-1923, which means it is in the public domain (and therefore, no longer has copyright protection). The image originally appeared in a 1910s Sears Concrete Block catalog. After scanning the image, I also cleaned it up a bit, cropping it down and removing spots and crease marks.
Practically speaking, anyone who knows how to use “copy and paste” can lift that image from my site and run with it (as many people have). However, there needs to be some consideration as to what was involved in my acquiring that image.
1) Research. How many people even know that Sears offered these block-making machines? How many people are aware that Sears had a specialty catalog devoted to block-making?
2) Expense. Through the years, I’ve spent countless thousands of dollars on research materials and old catalogs. And the expense of acquiring these materials doesn’t even touch on the time I’ve spent on the road, giving lectures and listening to people’s stories after the lectures. Because of this, I’ve learned so much from people of all ages, throughout the country. Such education is invaluable and irreplaceable, but it does not come cheap.
3) Time. I don’t have the emotional courage to add up how many hours I’ve spent researching architectural history, but I’ve written six books on this topic and that alone has required thousands of hours. And scanning a 100+page catalog can take HOURS.
4) Expertise, which, honestly, combines all of the above.
And then there’s the labor involved.
In most cases, the process of scanning a 90-year-old catalog destroys the binding. You’re left with an abundance of brittle pages that must be stored in an acid-free envelope or folder. And after the scanning is done, there’s the long, slow process of cleaning up each and every image.
Back to my original question: Who owns the image?
The following comes from Wikipedia:
In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that “a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original”.
In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented.
Although that case related to photographs rather than scans, it would be reasonable to say that by analogy the US courts would not grant copyright to a scan which has been enhanced – even manually – with a view to creating an image which is as similar as possible to the original.
Where the enhancement has gone beyond that, for example in bringing out selected details or colors not easily visible in the original, Bridgeman Art Library v. Corel Corp. may be less persuasive, and such cases should be considered on their own facts.
Seems that even for the courts, these are murky waters.
From my reading of Bridgeman Art Library v. Corel Corp., the act of scanning does not in and of itself constitute the creation of a “new” image that can be protected by copyright (which does not bode well for all the poor saps who scan pre-1923 catalogs and sell the CDs on eBay).
Conversely, when it comes to my contemporay photographs, those are most certainly protected by modern copyright laws.
However, even if my “scanned and enhanced pre-1923 images” are not protected by copyright laws (and it appears they may not be), the fact remains that from a literary standpoint, the ethical and professional thing to do is to give attribution and credit when materials are taken from another source.
And as Rachel has pointed out, it’s also the smart thing to do. This website gets 1,200+ visitors every day. Sharing some “Link love” is a sure-fire way to boost visitors at your own website.
In conclusion, if you wish to use any images from my site, please – oh please – just put my name with the image. Something like, “This image is used courtesy Rosemary Thornton,” or, “Image is courtesy searshomes.org.”
It’s just the right thing to do.
And now, back to happy things.
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