You've read my posts exhorting artists to read up on what's really at stake re: orphan works; here's a current example that illustrates how ludicrous things get when people and institutions are ruled by the fear of legal reprisal, and how the extended length of copyrights can contribute to locking up our common culture.
Photo: Chester Higgins Jr./The New York Times. Treasures in a historical society's library.
A Look Back at Canarsie, Clouded by Copyright Woes
By JAKE MOONEY
Published: June 29, 2008
THE photograph, in the archives of the Brooklyn Historical Society, showed a group of people having drinks at Whittaker's Hotel, a long-disappeared way station in Canarsie that once served travelers bound for the Rockaways. It was just what Brian Merlis, who publishes books of historical Brooklyn photographs, wanted.
But in April, a few weeks after Mr. Merlis first saw the picture, the historical society, citing copyright concerns, rebuffed his request to use it and a second photograph -- for a fee -- for use in a forthcoming book on Canarsie, pending further research. Mr. Merlis's objections became public when he wrote a letter criticizing the decision that was published on June 12 in The Brooklyn Daily Eagle. What is the point of archiving old pictures, he argued, if people can't use them?
But Deborah Schwartz, president of the historical society, in Brooklyn Heights, said Wednesday that the society was only trying to follow the letter of copyright law. The holders of the copyrights for the pictures -- one taken around 1895 and the other in the early 20th century -- are unknown, she said, and without permission from them or their estates, the photos cannot be reused for a commercial endeavor. Until, that is, they pass into the public domain, which is due to happen for the older picture in 2015, and for the newer as late as 2045.
"We would like to accommodate him, but we can't do that until we're sure that we have the copyright," Ms. Schwartz said.
"It's kind of a drag on some level," she added. "On the other hand, it's a law that's designed to protect artists, photographers, because it's their work."
Mr. Merlis, who teaches at Franklin K. Lane High School in Cypress Hills, has been producing historical books on Brooklyn, about one a year, since 1993. The books, some of which are produced with Lee Rosenzweig, are mostly a labor of love that generally make little money.
If the historical society's photos are not in the Canarsie book, he said: "Who loses out? The reader, the public, the people you want to spread the history to."
Other institutions, Mr. Merlis contended, interpret copyright law less strictly.
Copyright law is so intricate, experts say, that even many lawyers don't fully understand it. But the law generally comes into play only when a copyright holder complains. People reprinting copyrighted images, and institutions licensing them, decide for themselves how much risk of legal action they are willing to tolerate.
At the Brooklyn Public Library, Joy Holland, the manager of the library's Brooklyn collection, said she avoided acquiring photos with restrictions on their use. As for older pictures of unknown provenance, she said, the library generally assumes they can be published.
"The photographs in our collection, they were given to a public library, and I'm quite sure that the people who gave them knew that they would be used," Ms. Holland said. Still, there are exceptions, she said, adding, "Copyright law is horrendously complicated."
Ms. Schwartz, meanwhile, said the historical society was working to track down the copyright holders for the two images in question. Mr. Merlis hopes to resolve the matter soon, so he can have the Canarsie book ready in time for the holidays. His cover is already designed.
"It's a picture of the Canarsie Theater," he said. "And I know who took the picture. And I have the right to publish it."