Site ignites copyright row by posting 6,288 Smithsonian images

May 22, 2007

According to the Associated Press, the nonprofit group Public.Resource.Org is challenging the copyrights and restrictions on images being sold by the Smithsonian Institution.

Rather than file a court case, the group has downloaded all 6,288 photos from the Smithsonian website and online and has posted them on Flickr.

"I don't care if they sell the photos, but then once they sell it, they can't say you can't reuse this photo," said Carl Malamud, co-founder of the group Public.Resource.Org, advocates for posting more government information online.

"You're not allowed to chill debate by telling people they can't use something because it's under copyright when that's not true," Malamud told the AP.

Most images the Smithsonian is selling, including photos of artifacts and historic figures, are not protected by copyright, Malamud points out. But the Smithsonian site carries copyright notices and other warnings that would discourage most people from using historic images that should be publicly available, he said.

Smithsonian spokeswoman Samia Elia said its legal counsel was reviewing the matter.

Taking the broader view, the clash seems to pit the principle that government images are considered public domain vs. the Smithsonian's photo-selling pursuits.

Images made by federal government employees are exempt from copyright law and are considered to be in the public domain, said Robert Brauneis, a George Washington University intellectual property law professor. Most Smithsonian employees are considered federal workers because their salaries come from taxpayer funds.

Yet at the same time Prof. Brauneis told the AP that the way he reads it, the language of the restrictions on the Smithsonian Images Web site appears to be using contract law to extend the Smithsonian's rights beyond copyrights, he said. One provision states, "even in the absence of copyright, Smithsonian still reserves all rights to image use."

"It's not clear to me how it would make sense to say this photo is not under copyright and yet we own it and you can't use it," Brauneis said. "Contracts can sometimes go beyond copyright law, but exactly how far and when is not completely clear."