Public Domain Dilemmas

If I “dedicate” a digital photo to the public domain, have I dedicated the specific arrangement of pixels that make up that photo—or have I dedicated the more general visual image, the concept of that photo, if you will?

In the case of the former, can I change a single pixel, in a way that’s practically imperceptible to the human eye, but verifiably different (from a mathematical standpoint), and reclaim copyright of that photo (thus effectively removing it from the public domain)? Can I resize a photo and relicense it under different terms?

In the case of the latter, does public domain status follow any trivial transformation of that photo, such as resizing, cropping, or color adjustment? If I were to relicense that photo, would I be stealing or cheating the public? Would I be doing something “illegal”? Just as in the application of Fair Use, perhaps a legal determination would need to be made on the transformative nature of any new work based on public domain material.

If I dedicate something to the public domain, do I as the dedicator have any responsibility to ensure that it’s always publicly available, in perpetuity? This is a question I grappled with as I came to terms with the declining utility of my public domain photo galleries and my desire to merge them into my blog, where the content is currently licensed under a more restrictive (albeit admittedly still user-friendly) Creative Commons By-Attribution license.

If I remove the photos from the internet, does that have a demonstrable effect on the public domain? Does it matter if they were not all very good? If I possess a copy of some public domain material that someone wants, do they have any right to request that I give them a copy? Is it legal for someone to hoard the last copy of some public domain material? Is it moral?

When I first came around to the idea of licensing my photos under a more permissive scheme than copyright, I was immediately attracted to the concept of dedicating them to the public domain because it seemed to be the least restrictive means to give others unfettered access to my “creations”. Honestly I felt very fortunate to have traveled and seen what I did, and I wanted to share that with as many people as possible. It was only later after reading some things, that I realized in some ways the “public domain” is not all it’s cracked up to be.

The truth is, with my galleries having been on the internet, some for a period of over 6 years, numerous web crawlers have cached copies of both the images as well as the surrounding license information that indicated their public domain status. On one hand I don’t want to go through the trouble of indicating that certain resized images republished in new or existing blog posts were in the public domain (and not others). Partly because I’m not even sure if that is necessarily true. And on the other hand, I don’t want to get that email in the future where someone digs up a photo from my galleries lodged somewhere in the bowels of the Wayback Machine and calls bullshit on its new By-Attribution license.

In that case, I would just point them to this post. And honor the original public domain status.

3 Comments

csg

wow, very thought-provoking. I am struggling with this bit as well; for foundation photos and for my own personal. Pity there isn’t a “you can use this, but don’t lie and try not to be a jackass about capitalism” license

If you’re worried about someone using your work for commercial purposes and you don’t want them to, I’d recommend the Creative Commons Attribution-Noncommercial license. My only concern with that is how to define the line between what’s a commercial use vs what’s non-commercial.

For example in some circumstances some of my blog posts will display Google ads, which earns me around $100/month. Does that prevent me from ever including someone else’s “Attribution-Noncommercial” photo on my blog. I don’t know. Given that, I’m particularly fond of the barebones Creative Commons Attribution license. It covers “you can use this” and “don’t lie”, but leaves “try not to be a jackass about capitalism” in the eye of the beholder.

csg

that commercial/non-commercial issue is exactly the problem, especially since we are not-for-profit, which is not the same as giving-it-away-for-free. Since we are dependent on others to take pictures of us when underway (can’t get off the boat to photograph while sailing), I’m aiming for a use policy that is as generous to the world as we would like the world to be to us, while still protecting our business interest…

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