Copyright issues

[Stinger]

I have spent some time looking at this question because we are in the
process of putting more than 100,000 photos of all of our specimens on
the web.  The photos that we put up are copyrighted and fully protected
under US copyright law but I can't see how the specimen based NHM policy
as abstracted here could be feasible or have any pragmatic relation to
copyright law.  It seems to me that there are a few salient points here
with regard to US copyright law at least.

1. Copyrightable works on or in media must be just that.  Sec. 101 of
the US Code Title 17 is clear on what "works" are protected and goes on
to explain what they are in great detail - herbarium specimens clearly
don't come under this definition.  If a US museum wants to protect the
use of actual specimens, then maybe they must patent them.  The
specimens themselves cannot reasonably be considered under copyright law
because they are specimens, not works, especially work on or in media.
Thus you can't file for copyright on specimens.

2. If the specimens are public or not becomes a question as well because
then you get into other issues about invasion of  how a person gets
access to photograph them... (e.g. periscopes over celebrity back yard
fences) - it still has nothing to do with copyright.  I can't see how,
once a photo is taken, it can come under any copyright by the owner of
what it was taken of.  Humans are the owners of their own image (the
reason that you need a release from human subjects in a photo), but the
person (or the employer of the person) who takes a photo is clearly its
de facto copyright holder.  Thus, if you get legal access to photograph
the specimens, then you own the copyright to the photographs.  The
museum may charge you a fee to photograph them but they can't control
the use of the photos through copyright law, only through special
contract based on you getting access in the first place.

3. The CONFU rules (see
http://www.uspto.gov/web/offices/dcom/olia/confu/) are clear that
classroom use and personal scientific use are exempt.  The "change of
form" argument is less clear in them - I suspect intentionally.
However,  this MAY exempt photos that are printed from the web or
otherwise altered. For, anyone who wants to wade through the regs (not
just the recs of CONFU),  (http://fairuse.stanford.edu/primary/) is a
good source.

Stinger


--
Gerald "Stinger" Guala, Ph.D.
Keeper and Curator of the Herbarium
Systematist
Fairchild Tropical Garden
11935 Old Cutler Rd.
Miami, FL 33156

http://www.ftg.fiu.edu/