Public access group challenges Smithsonian over copyrights

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National Air and Space Museum
This Dec. 17, 1903, photo originally provided by the Smithsonian Institution's National Air and Space Museum shows the Wright Brothers Flyer lifting off in Kitty Hawk, N.C., which was part of a 2003 Smithsonian exhibit and National Geographic Society book titled: "The Wright Brothers and the Invention of the Aerial Age." A nonprofit group is challenging the copyrights and restrictions on images being sold by the Smithsonian.
Click photo for larger image.

WASHINGTON -- Grabbing pictures of iconic Smithsonian Institution artifacts just got a whole lot easier.

Before, if you wanted to get a picture of the Wright Brothers' plane, you could go to the Smithsonian Images Web site and pay for a print or high-resolution image after clicking through several warnings about copyrights and other restrictions -- and only if you were a student, teacher or someone pledging not to use it to make money.

Now, you can just go to the free photo-sharing Web site

A nonprofit group is challenging the copyrights and restrictions on images being sold by the Smithsonian. But instead of going to court, the group downloaded all 6,288 photos online and posted them Wednesday night on the free Internet site.

"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."

Most images the Smithsonian is selling, including photos of artifacts and historic figures, are not protected by copyright, Malamud said. 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.

Malamud testified last year in Congress against the Smithsonian's long-term television deal with Showtime Networks because he said it could restrict public access to the national museums' archives. He is also critical of other Smithsonian business deals, calling them "privatizing of the archives."

Smithsonian spokeswoman Samia Elia said officials were aware of Malamud's objections. "We've received Mr. Malamud's letter, and our general counsel is reviewing the matter," Elia said.

The photos are separate from an image sales deal the Smithsonian announced earlier this year with Corbis Corp., she said.

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.

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."


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