Ask the Smithsonian to withdraw copyright claim on public domain images

Creative works published before 1923 are legally part of the public domain. Beyond that, the federal government can't copyright anything, except in very specific circumstances.

So why is the Smithsonian Institution claiming copyright on a collection of 19th-century seed catalog images?

What Would Luther Burbank Do? is a project aimed at convincing the Smithsonian to change its policy and make American cultural history available to Americans, a move that would put its policies in line with those of the National Archives, the Library of Congress, and the Government Printing Office.

Public.Resource.Org is going to file a complaint about this and is collecting statements from any member of the public who'd like join. If you have some thoughts about why you think the Smithsonian should let these images be part of the public domain—or if you'd just like to have your name added to the formal complaint—please send a postcard to:

What Would Luther Burbank Do?
1005 Gravenstein Highway North
Sebastopol, CA 95472



    1. If you read the website, it appears the Smithsonian is sending cease and desist letters to people selling products with these images. Without digging too deep, they are probably asserting a claim based on their scans/photographs of the images rather than the original images which are in the public domain. The Smithsonian has done this for a while, what is unique is that their policies are not in line with those of other governmental institutions like the library of congress or the national archives. They probably are more in line with other museums, but most of them were not created by an act of congress and have board made up of government officials.

  1. I don’t even see a claim of copyright in the works. “The Smithsonian is the owner of the compilation of content that is posted on the SI Websites, which consists of text, images, audio, video, databases, design, codes and software (“Content”). However, the Smithsonian does not necessarily own each component of the compilation.” That is manifestly true. The Smithsonian owns a copyright in the website and its arrangement and collection of the works, but not in the works themselves.

    Also, works created by the Smithsonian are not “US government works,” as the Smithsonian is not an agency of the US Government, so it obtains copyright like everyone else.

  2. After looking at the site, I see where this is coming from. It seems to be a mistake of an employee of the Smithsonian and clearly goes against the Smithsonian’s own policies about what copyrights it does and does not claim.

  3. The etsy ad selling the prints conveniently leaves out any mention that it was actually the Smithsonian and not the seller who did the restoration work. (“All Digital Kiss artworks are taken from 3600 dpi scans that are painstakingly and expertly restored, retouched and enhanced. Many are altered dramatically.”)  And the seller has added their own watermark to public domain artwork.  So it looks like one public domain squatter is threatening another public domain squatter.   Hard to pick a side since everyone involved has unclean hands in this matter.

  4. (Note: The comment that this was originally responding to has since been largely removed.)

    The Smithsonian definitely charges usage- and space-based reproduction rates for their public domain images, Sarah. For example, here is NMNH’s fee schedule. 

    This is in addition to the rates they charge for the scan. 

    They’re charging rights-managed reproduction fees for public domain images, in other words. 

    I have been in the position of licensing these images from SI.

      1. The Library of Congress doesn’t; the National Archives doesn’t; the Government Printing Office doesn’t. It’s strange that SI tries to control the use of public domain imagery. That’s rather counter to the idea of the public domain.

        Yes, the Boing Boing summary of this being an issue of copyright ownership is erroneous. It’s a matter of their terms of service and implication of copyright.

  5. In my experience, many museums work around the public domain via contracts. While agreeing that the items are in the public domain, they then have contracts, sometimes of the TOS-style “by using this website you agree,” that prevent people from using reproductions of documents from them without permission and payment.

    The astute reader will notice, for example, that the page linked by chriscombs never mentions anything about copyright.

  6. You can find another instance here of SI demanding fees for PD items:

    A fantastic collection of 19th century prints firmly in the PD.  Still, Smithsonian asks for the following…

    “Permission fees:

    Editorial or special media use (such as textbook, magazine, film, video, etc.) $50 each B/W, $100 each color

    Non-editorial use (book cover, motion picture, television, etc.) $100 each B/W, $200 each color”

    …in addition…

    “One copy of the publication, to be sent to address below, is required as part of the permission agreement.”

  7. Going from James’ page, one gets to the Smithsonian’s Terms of Use:

    As I expected, they don’t claim copyright over anything. They just say that it’s a violation of the Terms of Use you implicitly agreed to by viewing their website to copy the material for commercial purposes, even if the material isn’t copyrighted and even if it is copyrighted by someone else.

    However, I feel it necessary to point out that the other side in this argument is by no means the more moral side. Unless I am very incorrect, Mindy Sommers is one of the numerous Etsy and Ebay scammers who take material from the Smithsonian, pass it off as their own, and then sell digital images for ridiculous prices. For this particular case, the complaint arose over the following:

    This work is almost certainly taken directly from the Smithsonian, and is also not copyrightable. Note how the “artist” carefully avoids mentioning that the “high quality scans” are not actually scans she made, and that the retouching and reworking was probably done by the Smithsonian, not her. Note how she only adds at the very bottom that people are not buying an actual collage, but just a “high quality, digital .jpg file.”

    Look at the extensive retouching she did: here’s the Smithsonian version of the bottom right image ( ).


    If you are concerned about people trying to assert copyright over public domain material, then please report people like digitalkiss on Etsy and scifier2 on eBay. They’re the ones abusing copyright here.

    TL;DR: The Smithsonian is not claiming copyright, though what they are doing may be dubious. The person running What Would Luther Burbank Do, however, is a scammer, and should not be supported.

    1. While I also don’t like that Mindy Sommers may be claiming copyright herself, there is a veryv important precedent that museums are trying to break, and that is that you can’t copyright a simple reproduction of public domain work, even a high quality scan.

      Clicking yes on a boiler plate TOS agreement isn’t likely to stand long either – and in any case, once the scan is out in the world, no one else is bound to that TOS. Vernor v Autodesk has set a precedent in the opposite direction, but only in the 9th Circuit and not over artworks.

      The main point being that locking up these images harms people who will use them. The solution to selling them for 19.95 is pointing to the free links, of which there should be several as people find ways to keep them in digital print.

      1. As has been repeated here quite often, the Smithsonian is not claiming copyright at all; Mindy Sommers is the *only* person involved in this who seems to be.

  8. Hey, random point, but Burpees Seeds was also the name of the improve comedy group at the college I went to (Denison University)!  Awesome!

  9. Although generally against copyright claims like this, I am pretty sure if you have the Burpee’s that is a pretty good sign that your cantaloup was of the Listeria kind.

  10. I do wish the Smithsonian would knock off this hogwash and instead set a good example for other museums.

  11. There are several ways to assert copyright, including terms of use. Our point with is that the government shouldn’t, either legally or morally, be asserting copyright. Private citizens can choose to copyright, and Mindy did. She made a digital thingiemabob.

    Other citizens have used this same artwork commercially and have chosen not to assert copyright. The Our Nation’s Attic open source beer is very commercial, but our brewers have placed all the bottles in the public domain. Same with the Smithson Stein, a handsome piece of glassware we sell on Zazzle.

    Citizens get to make moral choices like this. I happen to do everything in the public domain (it’s actually in the corporate bylaws I wrote). Others don’t make the same moral choice.

    But, the Smithsonian doesn’t get to make that moral choice, it has to obey the Works of Government clause and they also need to obey their charter for the Increase and Diffusion of Knowledge. It’s the law.

    1. I’m really confused here. Many, many commenters have pointed out that the Smithsonian is not asserting copyright, and that this appears to be a contract issue, not a copyright issue. Could you perhaps clarify this point, and explain why you believe that the Smithsonian is asserting copyright rather than claiming a TOS violation?

      Furthermore, are you suggesting that taking four public domain digital images and slavishly reproducing them in the same file constitutes a work subject to copyright, beyond the selectivity of the compilation itself? 

      Actually, looking at Mindy’s Policies page, she’s actually claiming copyright over every public domain image she sells individually, despite the images being identical, as far as anyone here can tell, to those from the Smithsonian. How can you expect a copyright complaint to be taken seriously using, as an example, someone who is either intentionally misrepresenting her works or fundamentally misunderstanding copyright law?

  12. I blogged about this case and I can’t really find it in me to root for anyone involved. As a gardener I’ve love for all the seed catalogs that the Smithsonian holds to be made available to the public, but Mindy shouldn’t get to claim copyright over material that is in the public domain just because she copy/pasted them into a larger file., I don’t understand the use of Luther Burbank by WWLBD? because he was pretty clear in his insistence that plant breeders be afforded the same rights as mechanical inventors. His whole life is basically an example of someone creating something and watching other people profit financially over his creations. 

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