December 25, 2007

Booking Images

So last night I had an interesting conversation with an acquaintance. He had a small problem. To wit, he used images from another published work for a book that he had just published. The images in this case were all famous works of art, all public domain. His question was how much ought he worry about using the images from this previously published work, which was still in print and therefore in copyright.

My initial response was a simple one. "Did you use a large enough number of images from this work to infringe its "anthology" copyright" (the copyright implicit in just selecting and arranging already created content)? Since his batting average was roughly 20% of the total from the previous publication, he appeared to straddle the line.

Next I asked, "Are images of these masterworks commonly available from other publications--musuem catalogs, coffee-table books, and so forth?" Most were, which offered the additional protection of plausible deniability. In brief, it would be difficult for the publisher of the source work to detect reuse of the images without a smoking gun in hand (i.e., a memo from the author stating where she got the works).

His concern was not a surprising one for someone new to publishing. He wanted to be open about the sources of his information. Yet he also wanted to know that he would be protected from infringement claims, something that publishing contracts do not always offer outright to authors. (After all, publishers trust their authors not to plagiarize and do not want to be in the position of having to police this basic expectation.) Was he being dishonest by failing to provide credit where credit was ostensibly due?

Full disclosure seems the ethical thing to do. And yet, crediting sources that offered little more than exact reproductions of already public domain images may be granting unearned credit. Years ago, I built American history CD-ROM products rich in textual and pictorial primary sources that I commonly, dare I say, pilfered liberally from documentary readers and anthologies. As beholden as I was to these readers, their contribution was primarily reproduction. They had no legal claim to the intellectual copyright of the work. Mere reproduction of an image or transcription of a textual document does not meet the minimum requirement for infringement. So crediting the "reprint" would have been, for all intents and purposes, a courtesy, one that I did not refrain from extending in most instances.

However, let's say for the sake of argument that I were producing a digital product on the formation of the Constitution. It is possible that I might use twenty critical documents--many short and self-contained, such as Federalist essay no. 19--from a source that had assembled some roughly 100 documents. Here the question of crediting the source becomes more complicated. On the one hand, I have used a seemingly substantial portion of the work, and presumably I should clear rights to use this combination of otherwise public domain documents. On the other hand, my digital product will encompass some 500 documents on the formation of the American constitution, and twenty included are not all that rare. Would I be inviting trouble from a publisher if I were to request permission that the publisher does not necessarily have the right to grant? (Oh, yes, publishers will sometimes try to assume rights that they may not possess.) Should I even bother crediting the publisher, which has done no more than reprint works that themselves might have been gathered without credit from earlier reprint anthologies?

If I seem to be crossing a line, think of it this way. Let's say I include the Declaration of Independence, several essays from the Federalist Papers, and several anti-Federalist essays from this work. It seems I ought credit the source anthology. But nearly all of these items have been reproduced elsewhere by other publishers. Not only who is to know where I sourced the documents under question, but the anthology publisher is more than likely to be guilty of having pilfered them in turn. For these reproduced transcriptions of public domain works--in the case of the Federalist Papers, reproduced from the newspapers in which they first appeared--the more logical and useful citation would be the work's original source. In fact, in citing unmodified primary sources, I commonly credit not the reprint anthology, but the original source referenced in that anthology. Even when one reprint credits another reprint (it does happen), I traditionally skipped over both reprints and cite the original source. It is, after all, the more useful bit of bibliographic information for the scholar seeking to undertand better the provenance of the primary source.

Note, of course, the critical term italicized above: unmodified. If the anthology I use has signficantly edited the original texts (often through ellipses), then I must both clear permission and provide credit. In those instances, the publisher can rightly claim copyright on the modified version of the original work by virtue of those editorial elisions, which then constitute the creative input component for a copyright claim. For still images, modification of these, too, would place a copyright stamp on the use of that image that would require both permission and credit. (Think Andy Warhol silkscreening a Velazquez painting.) In the case of my interlocutor whose concerns precipitated this entry, there was no modification by the publisher of the works. And so, in my view, there was no necessary obligation to cite the reprinter as the source for his own work.