To: The Internet
From: carl@media.org for public.resource.org
Subj: smithsonianimages.si.edu
Date: May 19, 2007

We write to you today on the subject of SmithsonianImages.SI.Edu, a government ecommerce site built on a repository of 6,288 images of national significance. The site is breathtaking in scope, with imagery ranging from the historic cyanotypes of Edward Muybridge to historic photos from aviation, natural history, and many other fields. If the Smithsonian Institution is our attic, these photos are our collective scrapbook.

However, the web site imposes draconian limits on the use of this imagery. The site includes a copyright notice that to the layman would certainly discourage any use of the imagery. While personal, non-commercial use is purportedly allowed, it requires a half-dozen clicks before the user is allowed to download a low-resolution, watermarked image. An image without the watermark and at sufficient resolution to be useful requires a hefty fee, manual approval by the Smithsonian staff, and the resulting invoice specifically prohibits any further use without permission.

For some photos, the prohibitions go even farther. Aviation photos, for example, come from the National Air and Space Museum (NASM), which states, among other efforts to overreach, “even in the absence of copyright, Smithsonian still reserves all rights to image use.” Are these prohibitions on reuse valid? We showed the NASM copyright page to Yochai Benkler, a Yale law professor. Benkler wrote back that the unilateral and unequivocal claims were “nonsense on stilts.”

The Smithsonian Institution is a trust instrumentality of the United States of America chartered by the U.S. Congress to "increase and diffuse knowledge." 20 U.S.C. § 41 et seq. The Smithsonian's Board of Regents is chaired by the Chief Justice of the United States and the Institution receives over $650 million in federal funds every year.

To understand why the Smithsonian is over-reaching when it comes to photographs, one must remember that works of the U.S. government have no copyright protection whatsoever. Works of the United States Government are in the public domain. 17 U.S.C. § 105 While there are subtle exceptions, such as work prepared by private contractors exempted under special exemptions established in the Federal Acquisition Regulations ( FAR 52.227-14), the general principle is quite clear and applies just as much to the Smithsonian Institution as to any other part of our federal government. As Rachell V. Browne, Assistant General Counsel of the Smithsonian Institution said in a statement submitted to the U.S. Copyright Office:

“The Smithsonian cannot own copyright in works prepared by Smithsonian employees paid from federal funds.”
The Institution makes a great show of the distinction between “federal” employees and “trust” employees. But, this distinction is based on an obscure 1962 non-binding opinion [Application for Registration of Claim to Copyright Protection of Publication Entitled “The White House - An Historic Guide,” Op. Off. Legal Counsel (October 26, 1962)]. As a matter of policy it is difficult to conceive of two Smithsonians, a federal institution accountable to the American people and an ironically named "trust" somehow allowed to act as a private, opaque body accountable to only the whims of management. Even if one is to carve off a “private trust” with different rules from those that apply to agencies of the U.S. government, one must remember that the trust is registered under Section 501(c)(3) of the IRS Code and is thus required to perform actions that directly promote the declared charitable purpose, which in this case is to “increase and diffuse knowledge.”

Because the overwhelming majority of the images in SmithsonianImages.SI.Edu appear to be public domain, and because the draconian notices on the site have a dramatic chilling effect on use of these historic images and national symbols, we have performed several actions that we hope will allow others to examine the public domain status: continue