You may have noticed that I use a lot of fancy graphics on this website. With that extensive use of images, readers with some knowledge of copyright law may wonder about who owns the rights to the images, is everything here on the up-and-up, and could they get in trouble for reusing images posted on this website?

Well, I’ve been researching these issues and have some tentative answers to provide. But first, let me provide some basics about the images on this website.

Q: Did you make all these fantastic images—the stamps, dividers, headpieces, the Random Illustrations of the Day? Are they yours?

ostly no, they aren’t mine, and (with a handful of exceptions) I did not make them. But I can still use them legally—and so can you.

The overwhelming majority of the images on this website (including the big M on the left) are in the public domain. A small number—mainly images of  the covers of books—are legal to reuse under the Fair Use exception to U.S. copyright law. (More on these terms and how they apply here in a moment.)

The images on this website that are Public Domain (nearly all of them) were made by people who are dead and whose rights to the pictures in question have long since lapsed. Some—your Edward Austin Abbeys, your F.O.C. Darleys, and your Gustave Dorés—are known to us and even retain a little of their former fame. Many others (like the creator of the spectacular headpiece at the top of this post) were anonymous designers of stamps, headpieces, medallions, tools and dividers who worked for publishers and printers and whose names are unfortunately lost to history. Their work belongs to nobody; it is in the public domain, the collective cultural property of everyone.

Q: You keep using the terms “public domain” and “fair use”? What do they mean?

he overwhelming majority of the images on this website are in the Public Domain or covered by the Fair Use exception to current U.S. copyright law.

Let’s get Fair Use out of the way first. There is an exception to U.S. copyright law that allows works to be used as an excerpt for an educational purpose, or for the purposes of critique or review. Hence, I can quote from copyrighted books and use a small image of their covers when it is for the purposes of review. Such images meet the definition of fair use because they are being used noncommercially, for the purpose of review, and are not being used in a way that in any way impedes the rights holder from monetizing their creative work. (Quite the opposite actually: publicity is the express purpose of a book cover, but even if it wasn’t, it is a part of the book under review and for our purposes that’s what is germane here.)

Q: Okay, what is the “public domain”?

Works are considered to be in the Public Domain when the rights of the original owners under copyright law have expired. In the United States and many countries, works published in 1923 and before are generally considered to be in the public domain. If a work is in the public domain, it means that everyone has the right to print it, publish it, reproduce it, alter it, sell it to make money—anything is fair game, but it’s fair game for everyone (meaning other people can reuse it too.)

So Google Books, Archive.org, and HathiTrust can scan hundreds of thousands of public domain books and put them on the internet, free to read. Wordsworth Classics or Penguin Classics can print any book they want from before 1923 and sell it in bookstores. (Although a translation of a pre-1923 book published after 1923 is still under copyright because the translation is considered an original work.)

Q: Is that where you get those thousands of images you post for the Random Illustrations of the Day—HathiTrust, Archive.org, and Google Books?

Those three, and other sources—whose legal rights to the works they are scanning and posting are functionally and legally equivalent to those first three. And guess what? Legally speaking, I have the right to use those images and so do you.

That is because—and this is the key point to understand—the rights to public domain works are determined by the features of the works themselves (their originality) and NOT by the time, effort, or money invested in scanning and posting them.

All of the recurring visual elements on the site have been clipped out of scanned images of public domain books, which would certainly be kosher based on no other logic than that Google went to court (and won) in order to get their scanning and digitizing of entire copyrighted books recognized as “Fair Use.”

It would be utterly illogical to say that scanning and digitizing entire libraries of books constitutes Fair Use, while clipping (that is, making a selective scan of a scan) of non-copyrighted works is not Fair Use. (What’s legitimate for the giant Mega Maid goose must certainly be legal for the tiny Jawa gander.)

Q: Okay, but what about the institutions that are scanning—shooting pictures—of the pages of old books? Don’t they own the rights to those pictures?

Nope. And lucky for us, we don’t have to rely on logic only here; because we have legal precedent on our side. The relevant case law is Bridgeman Art Library v. Corel Corp (1999) “which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality.” (emphasis mine)

The question at issue in that case—the sliver of light for anyone who wishes to claim a copyright on the images posted on this site—is whether scanning a public domain book creates “derivative works” which are themselves copyrighted. The judge concluded (and subsequent cases reaffirmed) that “slavish copying” (such as a simple scan of a book or work of art) cannot be protected as a copyrighted work; what makes something copyrightable is not the amount of time and energy spent on it, but its originality, whether it constitutes a unique intellectual or artistic expression.

Q: What about scans of public domain books that come with a watermark?

h yes, the “Digitized by Google” issue. Books scanned and posted to Google Books have an added watermark that says “Digitized by Google,” which some have interpreted to mean that Google asserts copyright over the scanned images.

(This issue was notably raised over a decade ago, when Google’s book scanning project started. At the time, Google’s spokespeople explained that they had purposely phrased the statements placed at the beginning of their book scans as a “request” rather than an assertion of rights. But let’s examine the issue anyway.)

As I see it (with my non-existent legal expertise), there are three separate questions here: 1. Can Google assert copyright over its watermark? Yes, they can. 2. Can Google assert copyright merely by scanning public domain works? No, there needs to be originality for that; slavish copying is not protectable. 3. Can Google claim originality (and therefore rights) for scanned images of public domain works simply by adding its watermark to them? I highly doubt it. For one thing, the watermark in itself serves no intellectual or artistic purpose; it is the legal equivalent of peeing on a tree (or peeing algorithmically on a hundred thousand trees) to mark them as your territory—it still isn’t your tree! The marking can only protect Google’s right to the portion of the image that contains the marking; just as a public domain image in a copyrighted book is still public domain, merely placing something copyrighted adjacent to or on top of something which is public domain in no way makes the public domain (or non-watermarked) portion of the image copyrighted.

(Addendum: This point was proven to an even greater degree than in the present instance when I asked the U.S. Copyright Office if I would be able to copyright my title cards, which are images composited out of parts of various public domain images. The answer was a hard no; and if that can’t be copyrighted, then the even more tenuous “Digitized by Google” business certainly won’t pass muster either.)

Q: What if the website that posted the images puts up a notice saying their images are still copyrighted, or according to their “Terms of Service” you must agree not to copy?

his strikes me as an unenforceable contract. First of all, if you post a “slavish copy” of a public domain work and claim it is copyrighted, that is factually incorrect. A court has ruled that such images cannot be copyrighted. By definition, the term “copyright” cannot apply to them. (And subsequent case law reinforces that conclusion.) This is an instance of “copyfraud.”

A contract that stipulates a legally invalid premise, and then conditions acceptance of the contract upon acceptance of that invalid premise, seems to me like a contract that would get thrown out in court. It is a baldfaced attempt to overrule the courts on what the definition of a legal term is.

Let me add here that if one of the contracting parties is a public entity (i.e. a branch of the government), and access is conditioned upon waiving one’s rights under the first amendment, that seems like a straightforward violation of the first amendment and the “equal protection” clause of the fourteenth amendment; the government cannot condition access to a public resource based on nothing other than the content of the user’s speech. The public domain is not top-secret, classified material; no copyright protects it; no legitimate public interest (what all government actions must have) is at stake in preventing publication of information about it or visual images of it. On what basis is such conditioning of access not a violation of the first amendment?

It also strikes me, at least facially, as a transparent (and hypocritical) attempt to monetize the commons by removing something from the commons. If you limit access to the public domain works themselves, by banning photography in museums or limiting access to public domain works to those with special permission, and then simultaneously limit who can use images created of public domain works, it creates a perverse situation in which private entities are given monopoly power over what properly belongs to the public.

Yet many archive librarians see it differently. In Jean Dryden’s fascinating article (linked to above) “Copyfraud or Legitimate Concerns? Controlling Further Uses of Online Archival Holdings,” he quotes one librarian who warns of the specter of profit-seeking shysters who take digitized images and

print them off and make them available at the flea market on Saturday and charge $30 each for them and retire millionaires to Bermuda. And we won’t—we’ll still be slaving away here.

As Dryden notes, this isn’t really about copyright law. It is more a statement of comparative justice—we did all this work and look at these people profiting off our work. (The first thought it puts into my head, oddly enough, was of conservatives who complain about grifters leeching off the welfare system; when in fact the public safety net, as with the public domain, is there for all of us. It evinces the same sort of resentment that has nothing to do with the law and everything to do with other people receiving benefits they don’t deserve.) And yet, this is no less the case when a company like Penguin or Wordsworth Editions takes a public domain text, reprints it, and sells it in bookstores across the land. Are Penguin and Wordsworth Editions cheating the transcribers of Old Curiosity Shop and Middlemarch? Do they owe these transcribers royalties?

A further concern raised by some librarians in Dryden’s study is that if their digital holdings are reproduced, then the context of the complete works or the carefully inputted metadata or information about sources will be lost. This is really less a legal argument than an expression of Holden Caulfield-esque repugnance at the public commons being in the hands of commoners. They don’t know all that important stuff we professionals know! And they don’t have to. No patient is going to die on the operating table because some members of the unwashed, un-advanced degreed masses neglected to look at your laboriously-entered metadata. Is it unfortunate that many people will invariably be more ignorant than the experts? Sure, but that’s a fact of life and no justification for allowing the public commons to be held for ransom.

What if they misuse it? That is definitionally impossible, unless the commoners emulate the very people concern-trolling them by attempting to exact gain from public domain works through copyfraud; in other words, the only legally actionable misuse is the one our Caulfield-esque librarians are already engaged in! (I should add here that if the concern truly is about other people using copyfraud to swindle the public by holding public domain works for ransom, there is a simple legislative fix for that: make large-scale, systematic profiting off of copyfraud illegal, and zealously prosecute anyone who engages in it.)

But they won’t even quote their sources! And legally, they’re not required to. Scrupulous, scholarly people will continue to act in scrupulous, scholarly ways. Other people won’t, and (so long as they are not outright con-artists like the above described patent trolls who should be prosecuted), this is not a great tragedy; it has always been thus, much like the popular foible of misattributing famous quotes—bad, but no crime. The phony sheep in the rye will go over that cliff if they want to; let it go, Holden. Let it go.

Q: Do you still have to give credit or attribution when you use someone else’s scan of public domain images?

It is generally considered proper professional etiquette (and morally right) to credit people who do work that you benefit from or use. This is because, the law aside, they still performed labor. Their organization or institution still made what you are doing possible. Legally, do they own copyrights to those images? No. But they still produced them and made them available, and that should be acknowledged. It is also considered a mark of intellectual honesty to acknowledge the source of what you use so people do not mistakenly think you are the original source.

When possible, I do try to link back to or reference in a caption the works from which the public domain images I use are derived. I’m not perfect in this regard; tracking the source of every image when dealing with thousands of images is a major cataloguing task—and I’m one person. As I’ve become more sophisticated in my cataloging methods, I have become better at logging data on where each image came from, and I hope to be able to make this information available to visitors to the site as well so that they can make use of it for their own purposes.

Q: Can I reuse the public domain images on OldBookAppreciator.com for my own projects or blog posts?

Absolutely. It goes without saying, given what I just wrote, that anyone who wants to is free to reuse any of the images on this site without a license with the exception of those images that are original to this site; so if you want to use any of the hundreds of Random Illustrations of the Day, go haywire.

Q: Should we credit or link back to your website?

Legally, you don’t have to. However, I would greatly appreciate it—it’s the moral, ethical, intellectually honest thing to do, for while the librarians who created the first scans of these public domain works certainly deserve credit for the time, money, and effort they invested (and you should credit them too), I think I too have performed a time-consuming labor in finding and clipping these images out of the pages they scanned, and appreciation is always nice.

(And for all I know, the librarians could have some automatic page-turning machine that helps them scan so many hundreds of thousands of books at industrial scale; it is quite possible I’m actually doing something more specialized and labor-intensive than what they do. In that case, why do they deserve all the glory?)

Q: What makes OldBookAppreciator’s image archive unique?

So far as I can tell, there are a number of institutions scanning entire books all the way through, whereas this may be the only website on the internet posting complete catalogues just the graphical elements in the 100+ illustration books of the pre-copyright era, all together, all in one place. Is that because no one has previously thought it worth the time and the labor? Perhaps. But I daresay the image offerings on this website may well become a valuable repository in the future if I can get it sufficiently organized, comprehensive, and searchable.

With what we are posting, you can have the all of the graphical tools available to artists before copyright available to you and digitized, right at your finger tips. You could use them as Twitter memes, to illustrate blog posts, and to tell stories. Already I have been using these elements to decorate my reviews, profiles, and blog posts. When information (including images) gets organized, the possibilities are limitless.