Celine's Original Graphics: Public Domain?
A discussion about public domain clip art and Celine's terms of usage.
Some time ago I linked Celine's Original Graphics in an article showing different types of terms of usage. At that time Celine's terms usage stated that the content was "placed willfully and knowingly in the public domain. Further down the page Celine states that use is granted to personal and professional web pages alike, as well as print newsletters, etc. This could be seen as possible conditions as to how the images may be used, so my recommendation was not to assume they could be used in commercially. My recommendation spawned a discussion about Celine's Original Graphics and public domain content.
Special thanks go to Jim Harris for his interesting and informative email shown below in its entirety.
Ma'am,
Your article on ahem! "free" clip-art is both interesting and informative - you do truly "get what you pay for!". And I agree - some of the so-called free clip art is so loaded with restrictions that it's not truly free. And I, personally, think would make a ripe target for a clever lawyer who wanted to bring an action for mis-representation... :-) I am going to take the liberty of disagreeing with one of your statements: You said:
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Celine's Original Graphics
Clip art collections of linebars, arrows, menu bar icons or menu buttons, bullets, backgrounds, and miscellaneous icons.
Are these collections of clip art free? Probably. Celine states that all graphics contained within these pages were created by Celine Chamberlin, and --are placed willfully and knowingly in the public domain." Celine then states that --this means you have free reign to download, use and/or change these graphics for your own use in your web pages. Further down the page Celine mentions that "use is granted to personal and professional web pages alike, as well as print newsletters, etc.", so I would think that the images may be used only for Web pages and for newsletters.
Could these images be used on a commercial Web page? I believe that a professional Web page and a commercial Web page are very different, so I would say that the images may not be used on a commercial Web site.
I have added emphasis to your content - which otherwise was lifted directly from the About.com site verbatim.
Before I begin, though I do study law as a hobby, and I find it interesting, I am - most definitely - NOT a lawyer by any stretch of the imagination! I do not claim to be, I am not setting myself forward as an expert in copyright law - a complex field of law in itself! - I am merely expressing MY opinion of what I believe a reasonable court would do.
I believe your statements (a) "...the images may be used only for Web pages and for newsletters." (b) "...the images may not be used on a commercial Web site."
... are incorrect, based on the following:
1. She places her clip art "willfully and knowingly in the public domain."
As far as the courts are concerned - that's it. Once she places a work "in the public domain", it's fair game. You can grab it, use it, modify it, whatever else you want to do to it, even sell it if you want, and there's nothing she can say. All she could do is complain if you claimed the work as your own.
In addition to all of this is the very common precedent used by courts that - if a term or statement has been used to mean a certain thing for a relatively long period of time, and the meaning of this term or statement has been used in a particular way - then the courts automatically assume that the person or entity using the term knows what it means, and means it the same way unless stated otherwise.
The GPL example is particularly pointed in reference to this, because GPL'd works are most definitely NOT in the "public domain" - and the reason they do not place GPL works in the public domain is because "public domain" does not allow them to place restrictions on how a receiving user can use or re-distribute the works in question.
The concept of "public domain" has become increasingly well defined by the continuous litigation by record, movie, and other commercial media companies against piracy - as well as by the Open Source licenses GPL, etc., that place works in a freely available state.
The GPL requires anyone who uses or derives things from a GPL licensed work to make the same rights available to anyone downstream of them - including access to source code and other original documentation and files - that they received. Public Domain does not mandate these requirements - I can use a public domain object or item in whatever way I choose - without restriction.
2. However, lets assume the court is not taking a really broad view of "Public Domain" today...
so let's look for things that might qualify, restrict, or change the meaning of "public domain" in her statement, as the court would do...
She then goes on to say "...this means you have free reign to download, use and/or change these graphics for your own use in your web pages." As well as saying "...use is granted to personal and professional web pages alike, as well as print newsletters, etc."
3. You then say that there is a difference between a "commercial" web page and a "professional" web page.
OK, back in court again... Using the "reasonable man" reasonable person, test - would a "reasonable person" of normal intelligence say that commercial and professional web pages are essentially the same?
I believe they would, as most "professional" doctor, lawyer, accountant, real-estate agent, etc., web pages are trying to sell something - a product they have or a service they offer - whereas on the other hand, commercial web pages are doing something completely different - trying to sell something - either a product they have or a service they offer... Oops! Hmmm... Maybe they are the same! Or at least similar enough that they would be treated similarly with regard to use of images. Obviously I am excluding pages like Wikipedia - purely informational - or a Dr., Lawyer, etc. page providing what is primarily information to the public.
4. You then go on to suggest that this means that these pictures can ONLY be used in newsletters and non commercial web pages...
My assertion would be based on the fact that she says "...as well as print newsletters, _etc_."
We all know that - in law - "etc." is used to denote a non-exclusive list, /e.g./ personal web pages, professional web pages, print newsletters, _and so on_..., that is, it includes the listed items, but also includes items that are not listed, like other types of web page, or print media, or other distribution channels, such as CD or file download, ad-infinitum.
As I see it - were I the court - the "defendant" in this case the author of the works in question, explicitly placed the works in the public domain and goes on to amplify her statement by asserting that it can be used on both "personal" non-commercial and "professional" commercial web pages, as well as other media - such as printed media - etc. In other words, she has granted by direct assertion: "public domain" - as well as indirect assertion: personal and professional web pages, printed newsletters - ETC. - the rights for the "plaintiff" us, to do whatever we darn well please with her art - except claim it as our own creation.
Based on these points, I respectfully disagree.
What say ye?
I say, Wow! I can't disagree with you, but... I believe that if I did use Celine's images for a commercial purpose, I would email and ask for specific permission to do so. I would rather be safe than be sued. Let's face it, I'm a whimp! :-)
Bobbie
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