Applying "ownership" to links, public domain material does more harm than good

My latest Locus Magazine column, "Proprietary Interest," talks about the way that our instinctive ownership claims over the stuff we find and post to the Internet do more harm than good. When we claim that public domain images, interesting links, or other net-fodder are "ours," we invite a muddle in which others make even more compelling ownership claims. For example, if the old public-domain Lysol ad you scan is "yours," then why shouldn't it be Lysol's?. This is a world in which we spend all our time arguing about whose interest is most legitimate, instead of sharing, discussing, criticizing and enjoying the world around us.
Any ethical claim to ownership over a scan of a public domain work should be treated with utmost suspicion, not least because of all the people with stronger claims than the scanner! To be consistent with the ethical principle that one should never use another's work without permission (regardless of the law or the public domain), every scanner would have a duty to ask, at the very least, the corporations whose products are advertised in these old chestnuts (the very best of them are for brands that persist to today, since these vividly illustrate the way that our world has changed - for example, see the very frank Lysol douche ad). For if scanning a work confers an ownership interest, then surely paying for the ad's production offers an even more compelling claim!

And the publishers of the magazines and the newspapers - to scan is one thing, but what about the firm that paid to physically print the edition that we make the scan from? And then there are the copywriters and illustrators and their heirs - if scanning an ad confers a proprietary interest, then surely creating the ad should give rise to an even greater claim?

We do acknowledge these claims, at least a little. A good archivist notes the source. A good critic notes the creator. But that is the extent of the claim's legitimacy. If we afford descendants and publishers and printers and commissioners their own little pocket of customary right-of-refusal over their works, we would eliminate the ability to keep these works alive in our culture. For these owed courtesies multiply geometrically - think of the challenge of getting all of Dickens' or Twains' far-flung heirs to grant permission to do anything with their ancestors' works. What a lopsided world it would be if ten seconds' scanner work with the public domain demanded 100 hours' correspondence and permission-begging to be ''polite!''

Proprietary Interest


  1. Cory,

    How would you consider ownership in the case of a chain email message? Let’s say it’s passed around for 5 or 6 generations before it reaches you. Attribution of the original author is sketchy. The message contains unique ideas. The message has been read by tens of thousands people.

    Is it owned? It is ownable?


  2. How do you know that work is in the public domain? Various trademarks have probably long since been abandoned (though not the word mark for Lysol), but the public domain is a copyright concept and the copyright in this ad extends to whatever expressive elements there are that are both original and minimally creative (the photo and accompanying illustration, for example). Whether or not this work should be in the public domain is a different question.

    1. @2: As I state in the article, the vast majority of these images come from the pre-Berne period in US legal history when copyright required formal registration; it was unheard-of for advertisers to register copyrights in their works. As a result most “vintage” ads are public domain.

  3. What about compilations?

    For example I’m creating a web site about the 30 or so plane crashes within the City of Winnipeg. (Military air school + bush planes from up north = aircraft as a form of precipitation.)

    It’s all image scans and links from local papers, Transport Canada, etc. I’m still doing a lot of work, and paying for archive searches and hosting.

    Strictly speaking I’m not creating any content – it’s all publicly available.

    But having done the research and created the compilation, shouldn’t I have some right to claim it as “mine?

    1. I do compilation copyrights of sound recordings. The sound recordings are individually attributed to their authors. Only the original elements of the “wrapper” are owned by the submitting publisher.

  4. I post a ton of pics at my Boomer nostalgia blog, Right on the site, I say this:

    Note to those who would use my images:

    You may use any images you find on my site on your own personal site. COPY the images to your own server, PLEASE. If you link directly, you will likely get a logo encouraging others to visit I Remember JFK instead of the graphic that you expected. In return, I request that you include a link back to I Remember JFK. Fair enough?

    I have a .htaccess trick that puts a blurb for my site up instead of an image if anyone attempts to link directly. But anyone is welcome to any graphic that is there.

  5. Good post, and something I’ve been wondering about in a related context – the sale of images on e-bay. And, I agree.

    However, to play devils advocate for a moment. If I walk outside right now and take a photo of a building, I ‘own’ that photo, and don’t need to ask permission of the architect, financier, owner, or anyone else to treat that photo as I wish. Similarly, if I then walk back inside and take photos of the (unfortunately very sparse) works of art in my house I ‘own’ those photos too, and don’t need to request permission of the artist, or picture framer, or anyone else associated with the original piece.

    How or why should scanning something be any different? From a technical perspective there isn’t any difference between taking a photo with a digital camera and scanning something – indeed with a long enough USB cable I can take my scanner outside and ‘scan’ an image of the same building I just took a photo of. Granted there isn’t a lot of ‘artistic compostion’ related to scanning a document, but then – like pron – what is and isn’t art is in the eye of the beholder. As [url=]Andy Warhol[/url] showed us.

    To but it another way; if I print out a copy of the Lysol douche add, frame it, hang it on the wall, then take a photo of it … how is that different to just scanning the damn thing in the first place?

    So, I’m confused. I agree wholeheartedly at an emotional level, but at an intellectual level I can’t see why I should. :(


  6. It disturbs me that I knew that it was a Lysol douche ad before I scrolled below the image of the woman at the door.

  7. HTTP stand for Hyper-Text Transfer Protocol. If your URI is an HTTP, then you have automatically given permission for others to link to your site. If you don’t like it, use another protocol.

  8. @5

    IANAL, but in my understanding, copyright law deals with these examples. Not all photographs are copyrightable creations — if your photo is a slavish reproduction of something else, you’ve done nothing creative worthy of copyright. The same would apply to a scan. Of course, some photographs, and likewise some scans, are creative, and are copyrightable. The standard for creation is pretty low: picking where to point the camera counts. Unless you’re just pointing the camera straight at a piece of artwork on the wall, with the result of making a replica of it. Photographs of famous public domain art is the example that got litigated, with Corel arguing that the photos were not copyrightable, and they needn’t pay to include them in their clip art collections, and some museum or other arguing for an ownership interest generated by the technical difficulties of creating really good reproductions, and the social benefit of supporting the museums which owned the original works. Corel, and the public domain, won the case.

    As to whether you own your photo, if you take a picture of something that’s copyrighted (unlike a piece of public domain art), it gets complicated. You may own your photo, but the creator still owns their work, and your photo may end up being a derivative work. Hard to imagine an architect going after a photographer, but it could happen.

    1. Hard to imagine an architect going after a photographer, but it could happen.

      I remember trying to license some stock footage of Madison Square Garden for use in an episode of a sitcom I once worked on. I was told that the Garden’s building was one of a few copyrighted buildings in NYC that couldn’t be photographed for commercial purposes without a license. We ended up using a shot from farther down the street, where the building was visible but not “featured.” This was apparently acceptable.

      I have no idea if this was the result of actual legality, or just some extralegal strongarming on the part of the Garden. Or something else. But there it is. It Could Happen To You.

  9. I agree with the argument, but I would also push harder on the assumptions about what ownership means and where it comes from.

    “Instinctive ownership” is a bit strong. Ownership is variously defined in different cultures, at different times in history, and in relation to different things and between different people. So instincts likely explain very little about why we have ownership rules, and especially very little about why we have ownership (a whole other layer of relationships that have even LESS to do with instinct, once the state gets involved in defining it), and even less still about why ownership laws, today, look they way they do.

    And yes, there are some decent studies of babies being observed instinctively giving and sharing, and that’s even when we are talking about material objects, as opposed to the right to use or re-use something non-material.

    so also, looking to copyright law to “deal with” conflicts over ownership assumes that the law is the right framework for meeting the needs of the public. In fact a combination of responses to interest groups, to historical context, and political influences doesn’t get us very far. the problem isn’t that not enough people are following a de facto good law. It’s that the law doesn’t serve a lot of people and purposes. And it looks like this argument is about why and how it could be better.

  10. The thing to keep in mind is that copyright is not a case of ownership, it’s a time limited right granted to a entity creating something using their creativity.

    Using words like ownership muddies the water.

  11. @ #5

    Yes, a photographer owns a copyright in his photographs. But you only can claim copyright in “original works of authorship.” While photographs can be copyrighted, just because you’re using a camera doesn’t automatically give you copyright in the image.

    For instance, if you use a camera to make a copy of a page from a magazine, you have no copyright in the resulting photograph. No creativity is involved.

    The standard for creativity is quite low–you can have a copyright in almost any photograph–but I think you have to draw a line with scans. Some might argue that in choosing a particular work to scan, or what scanner and what settings to you, meets the bar for creativity. I doubt this would fly–the intent is clearly to make a copy of the original work, not to make a new work with the old work as its subject matter.

  12. Ethically, there are two things here: attribution — of authorship or creatorship, and restriction — of people’s copying and reuse of the thing created.

    Attribution is reasonable, though as the article mentions it cannot always be done exhaustively. It is really about information on the thing created, and its moral principle is that of truth-telling. It is good to give correct attributions because we all benefit if we all tell the truth.

    Restriction is not so grounded. It does not follow from the notion of attribution. And in fact, in itself, such restriction is *immoral*. Abstracts — that is, copyable things — are unlimited, they are a natural commons. One person restricting another would be an infringement of their personal liberty, with no justification of actual injury. And also, since copying and reusing duplicates something good, we would *want* to do it: if we all do it, we all benefit.

    The idea of treating abstracts as ‘property’ is nothing more than a particular, and rather circumstantial, commercial arrangement. It is intrinsically malformed because it ties a moral behaviour to an immoral one. So whatever economic justification is proposed for it (and even that is lacking), it can never be satisfactory.

  13. I should think it self evident that scanning an image doesn’t make the image yours. I worked in a photo lab that had a policy of not scanning many of these things due to the murky nature of it. You scan an ad you cannot claim copyright. You print a book of scanned ads there are elements you own copyright on certainly but someone else could likely make the same book substituting just one ad for another and have the exact same rights.

  14. Here’s a great example of how douchey (pun FULLY intended) claiming ownership of old imagery can make you look:

    Short version: Someone finds the old master artwork for the famous Indian Head video test pattern during demolition work, and sells it to this guy.

    This guy, realizing that he has something unique and special, puts up a page to sell reproductions, stamps every pic (all lo-res) with SAMPLE, and claims that if anyone reproduces them, “they will be hearing from me!”

    Tacky, tacky.

  15. I personally have a very hard time with the ‘proprietary’ photos of our culture’s luminaries’ images. Supposedly the photographer or their publication owns them, but I feel the luminary should ‘own’ their own image and have to give the OK for it to be published. Seems only fair to me. I feel pretty strongly about this and feel we have been unfair to and disgraced our stars and politicians etc for too long. Am I wrong?

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