So Who Sucks Worse, Summertown Sun Publishing or Flickr?
See update below for a response from Summertown Sun Publishing.
Flickr user Dazzlecat (the account is closed now) wrote a blog post yesterday complaining about censorship of her photostream and images by Flickr. Apparently, according to Dazzlecat, she had posted some public domain photographs to her Flickrstream. Now this would seem a perfectly acceptable thing to do to me, but apparently some publishing outfit called Summertown Sun (publishers of Luna Girl Images) sent flickr a take down notice and so Flickr permanently deleted Dazzlecat’s photos.
Dazzlecat, upset at being censored on Flickr, made another new protest piece with the phrase “Summertown Sun Publishing Sucks,” in it and complaining about them reporting a public domain photograph to Flickr. Dazzlecat said this protest piece was then also removed by Flickr and that she got a flickrmail from Omar saying:
“Hello, dazzlecat!
Hi dazzlecat,
In joining Flickr, you agreed to abide by the Terms of
Service and Community Guidelines. Specifically, you must
not abuse, harass, threaten, impersonate or intimidate
other Flickr members:
http://flickr.com/guidelines.gne
. We’ve removed the content, “SummertownSun Publishing
Sucks!”, from your photostream. Please note that similar
activity may result in the termination of your account
without warning.
Regards,
Omar
”"
Now, maybe it’s just me, but somehow I don’t think that there is anything wrong with exercising your free speech rights and saying something sucks. In fact saying something sucks is about as American as Baseball, Apple Pie and Thomas Jefferson or something like that. I don’t think something sucks is harassment, I think it’s freedom of speech and freedom of expression.
I also think that sometimes when you try to censor people that you only make their voice louder. By putting Summertown in the headline of my blog which has reasonable Google pagerank this story will likely be on the first page of their Google search results for their company name for a long time.
As far as Summertown Sun’s imagery, it seems that much of their imagery is of stuff that really is in the public domain. They have a painting by Vincent Van Gogh on their home page right now for example. But they mostly seem to specialize in Victorian and other imagery which clearly would be beyond any copyright period. Just because they’ve gone through the work of collecting public domain art and have a site selling it on the internet, doesn’t mean that they ought to be able to prevent other people from using the same images. At present, anything published before 1923 is in the public domain in the U.S. As many of the images sold on Summertown Sun’s site are marketed as from the Victorian Period (from June 1837 to January 1901 per wikipedia), probably just about everything in their Victorian collection is part of the public domain.
Which raises the question here is Dazzlecat really harassing Summertown Sun Publishing? Or are Summertown Sun Publishing and Flickr harassing Dazzlecat?
I’ve posted the same image that Dazzlecat posted (and had removed from her Flickrstream) to my Flickrstream and we’ll see if Flickr decides to censor me or not in this case.
Update: Summerstown Sun Publishing responds:
“Hello ~ We are the owners of SummertownSun Publishing, the company you malign on your blog.
The photo you post and your comments falsely accuse us of deceitful and unethical behavior. As stated various places on our website, we claim copyright on images we have creatively altered, which includes hundreds in our collections; such alterations remove them from the public domain. In addition we offer all of our images under the terms of a license agreement, regardless of copyright status, which is common practice in the image industry in recognition of considerable expenditure of production work, money, and other resources in making our products available. (Our terms are very similar to those of Dover Publications, for example.)
Making false statements in a public forum with the stated intent of harming a reputation is the legal standard for libel. That (not censorship) is probably why flickr removed the photo (in addition to its being defamatory and vulgar, which also violates their terms of use for member conduct).
We are honest people who work 12 hours a day or more for a modest income to support our family. We have built our small, independently owned company by offering high-quality products that make beautiful images available to the home crafter. We spend a great deal of time, money and creative effort acquiring, digitizing, restoring, altering, and embellishing images and producing and publishing our CDs. We provide a valuable service with lower cost and higher quality than our competitors, and we are proud of our products, thousands of happy customers, and excellent reputation.
As the post on your blog contains false information that is obviously the result of a misunderstanding, we respectfully ask that you remove it.
We have no further comment on this matter. We will respond to any genuine, non-abusive questions directed to info@summertownsun.com. Thank you.
Sincerely,
Karen & Michael Goode
Mr. Hawk: You have our permission to post this letter on the condition that you include it in its entirety with no editing.”
The Summertown Sun Publishing company is a pretty interesting one. They claim they have reworked public domain material, and now own the copyright. This is, of course, not illegal or bad. That’s what the public domain is all about. However, if they claim that the ORIGINAL works can’t be displayed or that they impact their reworks, that’s not right.
I think it’s safe to say that this story is still developing.
Hi thomas,
thanks for your blog posting about flickr and summersuntown. and double thanks for posting the artwork on flickr. (BTW, i released that image into the public domain, so anyone can post it anywhere, etc.)
I’ll keep an eye on your blog to see what flickr does. i’m also working on a piece called Flickr Sucks and will post that on my blog when its done.
Thanks!
Dazzlecat
So what alterations to the public domain photos did Summer Sun make? If that’s they’re legal backing, then Dazzlecat has the same right to add her own artwork to the photo and post it, right?
There was another Flickr user who took Flickr photos and changed them with filters. Flickr said that since she was changing them, she had the right to post them in her feed. So why the discrepancy here?
All of these reports about Flickr leave me trembling — as far as I know, I don’t have anything that violates copyright on my account, but given all the weird edge cases that seem to trigger arbitrary deletions, I’m terrified. I’ve got 18,000 photos captioned, titled and tagged on Flickr – countless hours of painstaking work arranging, organizing. All that would be down the drain if someone arbitrarily or maliciously complained? Yikes and double yikes.
Mr. Hawk,
So have you still not got what Summertown folks said?
And if Flickr says you cannot harass you can not harass. If you so want to feel more ‘american’ start_your_own_website.
I thing everyone should post the picture on their blog.
Would be interesting to see the publisher’s reaction.
Steph, I’m aware of two tools which let you backup your Flickr photos.
First one is Migratr, which I’ve had a few problems running, but will backup everything. As the name implies, you can use it to upload photos onto a different photo-sharing website, which is really handy as a backup account.
Second is Downloadr. I haven’t tried it, and don’t know whether it can migrate photos, but is an alternative if Migratr doesn’t work.
There are photo-sharing websites that let you import photos from Flickr, including ipernity and Smugmug, but they require a bit of setup and cost money (ipernity has a free account option with some limitations).
Huh? Summertowns comments make no sense. You can’t “remove” something from the public domain (short of act of congress). You can copyright changes. You can majorly alter and make a derivative work, but not remove the original in some way. Offering a TOS also dose not change public domain status. If Dazzlecat took a wholy derivative work and posted it as her own that is a copyright problem, but that dose not sound like the case. Flicker should do a lot more diligence in these matters regardless, and should harshly respond (legally) to any company that files a false copyright or DMC take town notice.
This whole thing is weird, why is some company trying to randomly claim copy right over non derivative works, it’s clear from their sight that they do so and make no per photo distinction.
Dazzlecat here.
I’d like to comment on some things posted here. In answer to the question about what photos I posted. I posted only b/w images and only the ones that had not be altered.
In response to Blake Caldwell saying: “if Summertown is modifying the images, and if that’s considered a new work that has its own copyright (which makes sense to me), then we’re getting hysterical here – they would have the right to complain.”
Blake Its pretty easy to see which ones SummertownSun alters as they aren’t very good at it. They usually just include lame stuff like dots added to a dress, a few hand drawn lines on a hat, etc. And while hand-coloring a public domain image is considered copyrightable, I don’t think adding dots to a dress is considered enough of a change to be copyrightable. Even then I didn’t post any images that had these changes.
In response to Douglas Hopkins saying: “When are First Amend rights superseded? When you have agreed to a contract that sets them aside. Those images appear to violate the US copyright law, as well at least 2 points of the Flickr user agreement. Many of us in the creative realm depend on protected intellectual property as a livelihood.”
Even though I got the images from them, their “licensing” terms have no power over public domain images. Only congress can remove those images from PD. The only ones they hold claim to are the ones they “altered”, and in my opinion, their “alterations” are a joke.
In the lawsuite: Bridgeman Art Library v. Corel Corp., (S.D.N.Y. 1999), a decision by the United States District Court ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality. (info taken from wikipedia.)
A agree with you that copyright law protects creative people. As an artist I absolutely agreed with and abide by copyright laws. I did not violate copyright law by posting images that I got from SummertownSun because those images ARE IN THE PUBLIC DOMAIN. They complained about images that they didn’t do any altering to, I know because I was careful not to put any of the images up that they altered. Even though I don’t think their alterations would hold up as creative enough to warrant a copyright.
As for being accused of libel and harrassment: I have the right to express my feeling and thoughts about other people and companies. Its call FREE SPEECH!
Fascinating. Is there protectable “thin” copyright of derivative works that are derived from works in the public domain? If so, who owns it? The law gives the owner of the original work (the public) the exclusive right to authorize or create derivative works, which can (in theory) be separately copyrighted. This certainly does NOTHING to the expired copyright of the original, even if unauthorized derivatives. Therefore, even if somebody takes PD work and “modifies” it in some creative fashion, the derivative copyrght remains under the exclusive control of the copyright owner of the underlying work. In other words, derivatives of public domain works are still public domain works.
Let us hope that some enterprising contrarian takes this to the Supreme Court so we can all learn the law – and make any necessary repairs to it, if revealed to not actually mean what it currently says. Furthermore, it is axiomatic that federal statutes have largely occupied the field of copyrights and thus licensing contracts (in state courts) cannot be held to restrict rights that the federal statutes declared expired. On the other hand, “access” to copies (including originals) can be restricted by contract, as in “Please do not take any photographs inside the museum.”
This is only a single non-threatening image. If you had claimed to own the copyright to this image then that would violate the TOS.
Summertown Sun Publishing probably can’t enforce their copyright since the material is not worth anything and have instead they wasted their time harassing you through Flickr. Same thing with their claim of defamation. No false claims and no provable damages.
Flickr is just afraid of copyright infringements.
Stupidity is a common problem we all have to face, but not one that can be fixed. I wouldn’t be upset about any of this, clearly you can go on living without Flickr.
I’ve compared the so-called “altered” images of Summertown Sun’s to the originals and there is no change. Repeat: none. Let’s be real-do you really think Karen has the time (she certainly doesn’t have the talent, either–she’s not an artist) to alter over one hundred thousand images? Absurd. Further, you can’t just change the color or add a border, for example, and then claim copyright protection. The Supreme Court wisely ruled in the seventies that the change to the image has to be significant. But she hasn’t even done that. She sells low resolution, unprintable images and charges obscene licensing fees for commercial work. It’s about time somebody spoke up. I am sad to see Flickr landed on the wrong side of this issue. I’d Google Vintage Art Download…there are other, better places *without* draconian terms.
The problem is that one can’t be certain what has been modified, so one doesn’t know if what you have is still in the public domain or if it has been altered in a way which has a new copyright. If Betty Boop is in a Victorian scene then there are two obvious images involved, but there also might be more subtle changes present. There are companies selling stuff which is clearly labeled as being still in the public domain, so I’ll give my money to them.
However, if someone posts a non-Summertown image similar to one of theirs they shouldn’t complain. If Summertown keeps a description of what they altered and don’t make that information available to the customers then all the customers can do is complain, as Summertown doesn’t have to provide that info. It is up to potential customers to judge whether Summertown is improving images or poisoning the well.
Does anyone know where summertown sun publishing is located?