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Cottingley Fairy Copyright Question
image I have the good fortune of having a site that ranks relatively high in search engines. But this also means that I have the misfortune of easily attracting the attention of anyone out there who might object to something on my site, or who might want to claim that I'm infringing their copyright by my use of some material. So, in the past, I've had National Geographic threaten me, plus I've had complaints from the Time Travel Mutual Fund and the Human-Flavored Tofu Company (see below), among others.

Now the British Science and Society Picture Library has joined this list. They've sent me a cease-and-desist letter demanding that I either remove all images of the Cottingley Fairies from my site, or pay them a licensing fee for their use.

This raises an interesting legal question. The Cottingley Fairy images were taken in 1917 and published (in England) in 1920. They were also published in America. The earliest American publication of them that I'm aware of is the American edition of Arthur Conan Doyle's The Coming of the Fairies (George H. Doran Co., New York, 1922).

U.S. law states that everything published in America before 1923 is now in the public domain. Therefore, in America the Cottingley fairy images are in the public domain. But the law in the U.K. is that the images remain under copyright for 70 years after the death of the photographer. The two women who took the images died in the 1980s, so the images will remain copyrighted in Britain until around 2050.

So do the British copyrights have any legal status in America? I'm not sure. The closest parallel I can find is the case of J.M. Barrie's Peter Pan, which is copyrighted in the UK, but is in the public domain in the US. Efforts to enforce the UK copyrights in America have not been successful. When Project Gutenberg made the text of Peter Pan freely available on its site, it simply added a disclaimer noting that the text was public domain in the U.S., but not elsewhere.

So for now I'm telling the Science and Society Picture Library that the images are remaining exactly where they are. I've already traded five or six emails with them about this, and they don't seem willing to give up their claim. But I don't think they have a valid case, so I'm not budging.
Categories: Miscellaneous
Posted by Alex on Thu Jun 02, 2005
Comments (44)
More from the Hoax Museum Archives:
Alex, my two good friends Mickey Mouse and Donald Duck have wrestled with this problem in the past. So has my friend Tarzan, his pal Ronald McDonald, and their best bud Martin Luther King. Let's not forget my pals Jimi Hendrix and Prince...Happy Birthday to You, Happy Birthday to You, Happy Birthday Dear Lawsuit, Happy Birthday to you... now you're in big big trouble, arncha?
Posted by Hairy Houdini  on  Thu Jun 02, 2005  at  06:05 PM
Bugg'rem, Alex. I believe you're legally in the right.
Posted by Boo  in  The Land of the Haggii...  on  Thu Jun 02, 2005  at  06:25 PM
Alex,

I'm with you, I think it would be difficult to do anything based upon UK copyright laws when the work in question was published in the US prior to 1923.

But if it were me threatened with a lawsuit, I'd fold quicker than an Origami Stork!

Good Luck and keep us in the loop. grrr

Curt.
Posted by Wally  in  La La Land  on  Thu Jun 02, 2005  at  06:29 PM
As long as you know your rights, there's nothing they can do other than try to scare you. Just hold your ground.
Posted by AuelNeider  on  Thu Jun 02, 2005  at  06:59 PM
I think you should go one step further and somehow incorporate them into the MOH "greeting screen." Perhaps when you first enter MOH they could flitter across the screen or some other animation... anything to say...

"YOU'RE NOT THE BOSS OF ME!!!"

smirk
Posted by Mark-N-Isa  in  Midwest USA  on  Thu Jun 02, 2005  at  07:08 PM
Or I could start selling Cottingley Fairy t-shirts (though only to Americans).
Posted by The Curator  in  San Diego  on  Thu Jun 02, 2005  at  07:10 PM
Curses.
Damn UK.
smile
Posted by Boo  in  The Land of the Haggii...  on  Thu Jun 02, 2005  at  07:21 PM
Good for you, Alex.
The Fairies are in the public domain (and besides, weren't they a hoax to begin with?). If the Brits are too uptight to recognize this, give'em a long-overdue enema and keep holding your head high.
Posted by Big Gary C in Dallas  in  Dallas, Texas, USA  on  Thu Jun 02, 2005  at  07:31 PM
The way I understand it is that any digital images published over the internet are governed by the copyright laws in the country in which the images are hosted.

If I, or one of my fellow UK residents was to purposely download them and store them on my computer, then that would be of questionable legality.

They could only possibly sue you under US copyright law, which, as you say, they wouldn't have a leg to stand on.
Posted by Andrew Nixon  on  Thu Jun 02, 2005  at  08:37 PM
Hey, I am from the UK, and I reckon you should tell them to stick their request where the sun don't shine...Heck, the photos are fake anyway...Good luck and don't give in..you're in the right!
Posted by Johnny  on  Thu Jun 02, 2005  at  09:08 PM
Alex, I think it's time you find a copyright lawyer or professional reference, such as somone who's got a few years of law study crammed in his/her brain. You're getting this sort of chaff regularly, and you're starting to be a bigger target, what with the books and all.

I think you're likely in the right, but you may need a puffed-up sounding third party to throw some citations at them to get them to back off, or give you some triangulation on close-calls.

If I were looking for such a person, I'd start with 'Lawyers for the Arts' and such groups which tend to be less ... mercenary ... than some other lawyer groups. There may also be court decisions online about people who did reviews of this or that, who were sued by offended owners, which you could cite in your email exchanges. Remember the beef/Oprah fuss a few years back?
Posted by cvirtue  on  Thu Jun 02, 2005  at  09:31 PM
Unless the person/organization that's threatening legal action has deep pockets and decent connections, it's almost always an empty threat. It costs a LOT of money and time and effort to bring a case to trial, and unless you're doing something that's actually costing the would-be plaintiff most of their income, it's just not worth it.

Now, if it was Sony, they have enough money and influence to start suing people left and right just to show how big their balls are, and they wouldn't even need to care about the money and time it would take.

But let's ask ourselves this: how much harm could having these pictures really be doing to the British Science and Society Picture Library? Are they losing money because thousands of Americans are downloading fairie pics from Alex's site instead of paying the Library for their use? I *don't* think so.

Furthermore, and even more salient: how much money and time do you think the British Science and Society Picture Library has to actually get cases brought to trial? How much money for extraneous lawyers' fees could a friggin' library possibly have to spend?
Posted by Barghest  on  Thu Jun 02, 2005  at  09:41 PM
Didn't Cynthia Butler threaten you, too, Alex? Why'd you leave her off your list???
Posted by BugbearSloth  in  earth, 3rd planet, sol system  on  Thu Jun 02, 2005  at  11:08 PM
Actually, as far as Sony throwing their weight around, they got their rear ends handed to them by a tiny little company with the rights to Force Feedback technology. Never underestimate the power of the little guy.

There *is* one thing that might be an issue: Your book has one of the photos in it. While it's printed in the US, does it violate laws if someone in the UK buys it and has it shipped to them?

In any case, I'd simply tell them 'I'm sorry, you'll have to get in line behind the guy who makes human-flavored tofu and claims I'm ruining his business...'
Posted by Bobcat  on  Thu Jun 02, 2005  at  11:20 PM
That's right. Cynthia Butler too. How could I have forgotten about her? She even accused me of murdering her brother, or something like that.

The book definitely doesn't violate any laws because I paid an archive almost $300 to get a high-resolution version of the image. In the process I acquired world rights (for the book).
Posted by The Curator  in  San Diego  on  Thu Jun 02, 2005  at  11:41 PM
International domain laws become so delightfully confusing regarding the'net... it rather shows the artificiality of our 'national' concepts, doesn't it?

Personally, I think you should take this tack:
1) Elves and Fairies are traditionally supposed to live for hundreds, if not thousands of years.
2) Publishing images of living persons for monetary gain requires (in most nations) the permission of the subject.
3) As such, the Faeries in question are having their Rights Violated unless the "Science and Society Picture Library" can supply Documentaed Proof that the fairies in question gave permission for the pictures.

So take that! And they should watch themselves, too... those fairies will most likely still be alive, and they're nasty wee buggers when they get annoyed...

Or, of course, you can take the course of going to a Faerie Ring yourself, performing something odd and New Age (probably at night and involving herbs and rainwater) and then come back claiming that you, personally, have spoken to the Fey in question, and that they gave you PERSONAL permission to continue. Call it a Religious Freedom issue... that'll gett'im

Best Wishes,
J
Posted by Jeremy Osborn  in  Canada  on  Fri Jun 03, 2005  at  11:33 AM
I don't believe they ever got the fairies permission to photograph them, so they published their photos illegally anyway.
Posted by Tom  on  Fri Jun 03, 2005  at  12:17 PM
You should get a lawyer to help get yourself out of these problems.
Posted by PlantPerson  on  Fri Jun 03, 2005  at  01:05 PM
Since when do we have to follow British laws when we have our own laws to protect publications.
Keep up the fight
Posted by John Healy  in  Floral Park, NY  on  Fri Jun 03, 2005  at  01:08 PM
Well alex,

Being that your a resident to san fran. your website is based in the U.S.

They can only ask you to take them off they would have to sue you in a us court to make you take them off. But, any judge who had half a brain would decide in your favor (being that you broke no laws in the US)
Posted by bonk  on  Fri Jun 03, 2005  at  02:22 PM
Librarians, archivists and collectors often think they have copyright on the photographs in their collection. They're wrong.

The creator of the photograph (or other media) has the copyright and when he/she has died the copyright goes to the lawful inheritants (family).

Those two girls have grown old and died. Did they have children? There will be some family left... Tell the British Science and Society Picture Library you will ask the girls' relatives for permission and that you'd love to hear their opinion on an institute unlawfully claiming a licensing fee which is their right only.
Posted by Henri  on  Fri Jun 03, 2005  at  07:18 PM
Hey, Alex - Agree with John H, and to expand I say; you are a U.S. citizen (dual, I know), and published on U.S. soil, under U.S. law. The Brits don't tell us what to do. Tell 'em to bloody rot!
Posted by stork in lieu of all else  on  Fri Jun 03, 2005  at  08:34 PM
Hey, on behalf of some of us British citizens (well, me and my husband, I haven't taken a poll), I'd like to say that we're on Alex's side.

It's the British Science and Society Picture Library, not the whole country/countries...
Posted by Boo  in  The Land of the Haggii...  on  Fri Jun 03, 2005  at  08:40 PM
>>>Actually, as far as Sony throwing their weight around, they got their rear ends handed to them by a tiny little company with the rights to Force Feedback technology.<<<

Yeah, but the point is, Sony has deep enough pockets that they could lose a frivolous lawsuit once a week and not even feel any adverse effects from it. They could blow a million dollars suing me for failing to be sufficiently Rockin' just to have something to do on a slow Friday, lose all the money, and nobody at Sony would even have to worry about their bonuses. A smaller corporate entity that lost one or two court cases like this could find themselves bankrupted and ruined.

So my point was: can the British Science and Society Picture Library really afford to bring baseless, frivolous lawsuits against anybody? Or would it close their doors if they lost such a suit? If it would (and that seems plausible), then they're just making noise--they're not going to risk shutting down just to prove a semantic point by suing somebody over a stupid situation like this.
Posted by Barghest  on  Fri Jun 03, 2005  at  09:23 PM
They don't have a case simply because they don't own the copyright. Unless they can show you a document signed by the original photographers (the girls) or relatives who inherited the copyright, in which the copyright is transferred to the British Science and Society Picture Library. I'd be surprised if they can show you such a document. Just ask them, Alex.

They may very well possess the original prints, but the object and the copyright on that object are two different things.

When an artist sells or donates me one of his paintings, the copyright remains his. The copyright belongs to the creator, not the owner of the painting. This means I can't produce postcards with the image of his painting without permissio of the original artist, nor can I ask others a licensing fee for publicizing an image of the painting.

It can't be different for photographers and their photographs.

The British Science and Society Picture Library is simply mistaken by thinking they have the copyright because they have the original print in their collection.
Posted by Henri  in  The Netherlands  on  Sat Jun 04, 2005  at  09:29 AM
Like I said, nothing against the wonderful British people, or anything, but their domestic laws don't apply here, anymore. We fought a couple of wars over this issue, I seem to recall, and we won both. And it's not like the British government is asking you to cease and desist, even if that mattered; it's a bloody library archive organization! Again, I say, tell 'em to piss off, the bleedin sods!
Posted by stork in lieu of all else  on  Sat Jun 04, 2005  at  02:26 PM
With you on that, stork!
Posted by Boo  in  The Land of the Haggii...  on  Sat Jun 04, 2005  at  06:17 PM
They are simply using this so that it can be used as evidence if they need to protect their copyright at a future date.

"See, your honor, we're defending our copyright by sending cease-and-desist letters to potential infringers."

Now tell the nice people that their laws (the pics are still copyrighted) don't apply to our laws (the pics are in the public domain) & send them on their merry way.
Posted by Anonymous  on  Sun Jun 05, 2005  at  08:43 AM
Hi there,

I studied our (UK) intellectual property law quite a while ago but from what I remember of it:

The photographs will be covered by copyright as long as the photographer who took them died less than 70 years ago (given the cease and desist letter I think you can assume this to be the case).

Under a series of international copyright law conventions UK copyright is valid in the US and vice versa.

As a result you may be committing a civil offence in the US.

I am not a lawyer and like I say this is just what I can remember but you would probably be well advised to either consult a lawyer or take the photos down.

Hope this helps,

Ed
Posted by Ed  in  UK  on  Sun Jun 05, 2005  at  02:31 PM
Is there a link to the Cynthia Butler thread? Sound like good reading but I can't find it...

Wally.
Posted by Wally  in  La La Land  on  Sun Jun 05, 2005  at  07:15 PM
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