Ask Dr. Copyright

Dear Doc:

If something, a photo, music, a video, is in the “public domain,” then why must I pay for a license from Getty Images to use it? Shouldn’t it be free?

Concerned Confused Citizen

Dear CCC:

You are, indeed, confused. You see, being in the “public domain” just means that there are no legal restrictions on a work that used to be protected by copyright (or that never was!) If something is in the public domain, and you run across it, you are free to do whatever you like with it. You may make copies of it, you may create other works from it. Whatever. The trick, however, is that you have to get the public domain work in the first place. Just because it is in the public domain does not mean that it is in the “public realm” (meaning that you have access to it).

That is where commercial archives (and other libraries) come in. Their job is to house copies (and originals) of works, often while they are protected by copyright, and make copies available to those who are willing to pay for the right to use them. When something in the library falls out of copyright, that does not change the business model. The archive just keeps right on charging. Because it can.

Under both United States law and international treaty, copyright protection lasts a very long time. The older something is, the less incentive there is to keep it readily available. Old books are removed from public library shelves every day and disposed of. Old movies are taken from streaming sites. But companies such as Getty Images have a business interest in preserving these works and selling rights to anyone who wishes to use them, regardless of whether copyright protects them anymore. They also generally do not care why a customer wants to use something. A teacher who wants to show a historic film to her class will be charged, just like an artist who wants to use the work in an installation or a Hollywood director who wants to put it in a blockbuster movie.

Some people are raising questions about whether there could be some way to keep our history and culture from being sucked down the copyright drain and into commercial archives, where we will all have to pay to access everything. These questions have been creatively raised in the documentary, “A History of the World According to Getty Images.” 

The Doc, for his part, thinks that there is so much money being made by commercial archives that public domain nonprofits, like the Internet Archive, don’t stand much of a chance to compete. He does look there first, however. You should, too.

Have a question about copyright? The attorneys at LW&H would love to answer you. Give them a call.

Until next month, 

The “Doc”

— Lawrence A. Husick, Esq.