Public Domains, Privacy of Emails
A discussion about public domain clip art and the privacy of emails by Jim Harris and Matt Harris.
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 Matt Harris and Jim Harris their his comments and information..
You might want to browse the first public domain email by Jim Harris before reading the continued discussion below.
(Matt Harris writing...)
Jim,
I think you are largely correct.
First point. Although you might not have an expectation of privacy in
emails, I'm not convinced that means you don't have a copyright in them.
Granted you obviously don't register your emails with the copyright
office, but copyright vests on creation, not on registration or
publication. The advantage to this is that if someone were to publish a
book of your emails, you might be entitled to remuneration for your
creative input into this work. Although privacy does play some part in
all of this, it does not necessarily speak to this specific issue. For
example, if I publish a book listing all the terrible things I've done,
I certainly don't have a privacy interest in the book, and so it could
be used as some evidence against me in litigation, but that quite
obviously does not preclude me from retaining the copyright in my book.
Second point. I think you are absolutely right about placing the work
in the public domain. Copyright consists of what is known as a "bundle
of rights" - six rights in particular: reproduction, production of
derivative works, distribution, public display, public performance, and
public performance by digital transmission. These rights are delineated
in 17 U.S.C. 106, and each right is dependent on the type of work at
issue. While copyright involves all of these rights, to the best of my
knowledge, they can be licensed to individuals on a separate basis, but
abandonment is in toto, and I would generally consider the notion that
something is given to the public domain as abandonment. However, it
does not need to be - one can reserve rights in their copies - hence the
phrase "all rights reserved." There are a number of ways this is done,
and if I had my copyright text with me I could give you a more in depth
discussion, but unfortunately I do not.
-
(Jim Harris commenting.......)
Matt, I agree about the ability to reserve rights - but in this case she has not explicitly done so. In fact, she has gone to great lengths to detail various ways that the content can be used.
I am also not sure about the intersection of "public domain" and "reserved rights". As far as I know, public domain is public domain. If you reserve rights, then it's not truly public domain anymore - especially since the common "reasonable person's" interpretation of public domain would be a total abandonment of rights - except for the right of "ownership" /i.e./ it's still HER work, even if she gives it away for free. AFAIK, I can do anything I want, except say that these works were created by me.
The intersection of public domain, total abandonment, and reserved rights, partial or no abandonment, is inherently contradictory - you're either pregnant or you're not. There is no "half-way-pregnant" that I know of... :-)
So... moving on...
Third point. You are probably right about the individual's intent of completely abandoning her copyrights. The statements she makes in regard to who and how the clipart may be used does seem to point to examples, and a non-inclusive list. However, this is not entirely cut and dry - if I were arguing for this individual to retain some rights - I would point out that giving a list that is non-inclusive does mean that some uses outside the list are permitted, but simply by giving a list, she is logically perceiving there will be other unacceptable uses it is just not apparent what these are. Tough point, but not improbable for a court to agree. For example, if I have a copyright in a book and I sell you the right to vend, distribute, sell, rent, etc., that would seem to not imply that I sold you the right to create derivative works.
-
(Jim Harris commenting........)
Matt - I think you're totally missing it here. This conflates the issues of public domain and reserved rights - which, by their very nature, is impossible. You can't be both a citizen of the US, and NOT a citizen of the US at the same time as it's a binary choice - you are, or you aren't. If you were arguing for this person to retain some rights, I'd think you're a deliberate masochist! :-) Really now... She places it "willfully and knowingly in the public domain." You have both scienter and intent. Q.E.D. - she's hozed! And if that were not enough - she then proceeds to provide examples of ways that you can use this public domain work. Nothing she says implies any desire at all to retain any creative rights in these works. If you were to get a court to go along with your theory, I'd have the appeal filed before the noise of the gavel had stopped! (laughing!) Your example of the book is inapposite here - you are specifically reserving rights, and specifically enumerating rights that I would have. If I were to sell it in book form - I'm within your limits. And - if I were to provide it in some electronic form as a PDF, or an audio-book, for example, simply because the medium has changed, this does not mean I'm not selling it. However, were I to transform this into a play book or a movie script and try to vend it that way - you could have my tush on two points. (1) The transformation of the book into a play or movie script is creating a "derivative work" - a right I do NOT have here. (2) This also implicates the right of "public performance" - another right not specifically granted. In the instant case, the author specifically, willfully, and knowingly abandoned rights. As the First Circuit loves to say: "[She] can't come back to court for another bite at the apple."
In the end, though, for your bottom line, I think you are dead on. Most likely one can use the clipart with impunity, as long as they do not attempt to garner copyright for themselves in the art.
Matt
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