Basically, i want to charge for the download of these images off my website, but I dont' want to be responsible for selling a photo that someone uses in a commercial project. If I were to put a disclaimer of some sort protecting me, am I still liable?

Contact a good IP attorney, and seek his/her advice on what you can and cannot do. And have him/her write the disclaimer and terms of use so that you will be protected.

It will likely be worded such that by downloading the image, they are agreeing to the terms of use and that, in the event their use of the image violates any other rights, they will defend you against claims as well.

If the images you wish to sell are truly in the public domain, my guess is that you will be able to sell high resolution versions, but since the potential for abuse of the images (in violating right of publicity as you pointed out) exists, you definitely want a good IP attorney writing your disclaimer, terms of use and any other appropriate agreements.

Even though the original copyrights may have expired, I believe they still have rights to prints made from their negatives. Not sure how this works, but I imagine that when they make a print, it becomes a new work, with a fresh copyright.

I have several photographs displayed that I got from the San Diego Historical Society. Even though some are from the 1800's, they have a copyright stamped on them claiming copyright by the San Diego Historical Society.

They are clear that for the modest price you pay for the prints you only have the right to use the print for personal use. They have a seperate schedule of fees for print publication and for use on a web site.

Different story if you copy images from an old book, magazine, or print on which the copyright has expired. But apparently, when somebody sells you a print from a negative they have in their possession, they may acquire fresh rights to those prints made from their negatives.

Even if you could, legally, offer for sale what is otherwise available for free, you would do your site's reputation much good.

"Photographs in this collection were taken by photographers working for the U.S. Government. Generally speaking, works created by U.S. Government employees are not eligible for copyright protection in the United States. However, they may be under copyright in some foreign countries and privacy and publicity rights may apply."

That's all it says for the images that I am using. However, it says that for nearly all of the images in the archive, as well. If there is an unknown copyright status, the Archive does not make high quality versions available for download.

I'm definitely going to talk to an IP attorney, but I thought i'd post this here in case someone has any knowledge or advice on what to expect. THanks.

Did these come from their web site, copied with a camera on-site, ordered prints from them, etc. etc. etc.?

Again, if they fulfilled a print order or orders, there probably is specific language on the order form and/or receipt and perhaps a copyright notice on the prints themselves. Where did the language you cited above come from?

Even if you could, legally, offer for sale what is otherwise available for free, you would do your site's reputation much good.

Why not? For the sake of the following argument, let's say that the images are truly in the public domain. Just because they are public domain and free to use, does not mean that they're easy to get. You're offering a service. You may have them better organized and easier to sort through than a government site may have. Or, you may have images compiled from different sources.

So, why not charge a fee for your service? There's a big clip art company that publishes books and has a web site offering lots of public domain images.

Say for example that I have an old book that is now public domain. It has some cool cover art. That art is free to use. But, to use it, you'll have to find a copy of the book. That art may be public domain, but the physical book is mine. I do not have to allow you access to it. If you cannot find it in a library or elsewhere, how will you use that "free" art? You'll have no choice but to keep looking, or do without, or purchase a digital scan from me.

Or, to look at it another way, what if you find the book, but do not have a quality scanner? You'll have to find someone with a scanner and likely pay them for the service.

Now, after you've purchased my scan of the book cover, there is, to my understanding, a legal grey area as to whether I can claim a copyright on the digital art. Last I read, that is still something up in the air, and generally covered by agreements when you purchase a license to use the image. The enforceability of those are, as I understand it, in question as well. So, once you've purchased the digital image, whether or not you yourself might be able to resell it is questionable.

The question is whether the act of scanning and perhaps even restoring/repairing/touching-up an image constitutes sufficient creative input to merit being considered a derivative work. (A derivative work of a public domain work is copyrightable.)

[archives.gov...]

Not sure how this works, but I imagine that when they make a print, it becomes a new work, with a fresh copyright.

That isn't the way that it works in the United States. There has to be something transformitive in the new work. See Bridgeman v. Corel

Museums HATED Bridgeman for bringing that case to court because they knew that they would lose and there would now be caselaw for anyone to quote that wanted to copy one of their reproductions. All those copyright claims on prints of any 2D public domain works are just about bogus in the United States. They have to add a new element of creativity to win any claim, and they know it. They just put those copyright notices there in the hopes of selling more prints.

( btw ) sour grapes rarely sell as well as the sweet ones ..

All those copyright claims on prints of any 2D public domain works are just about bogus in the United States.

Oh, joy! I am off to crank up the presses on "Lindbergh With Mysterious Man Lurking Under Wing". ;)

edited "priorities"

[edited by: Leosghost at 11:56 pm (utc) on Nov. 7, 2006]

So, if someone scans an image to their website that is from a public domain image, it is not protected.

In reading thru the link to the Archives:

"Certain individuals depicted may claim rights in their likenesses and images. Use of photographs or other materials found on the National Archives' web site may be subject to these claims. Anyone who intends to use these materials commercially should contact the individuals depicted or their representatives."

I'm not a lawyer, but if you intend to sell the photos, you are actually 'using the materials commercially', right? You are making money from the image... that's commerce.

Err on the side of caution... it's cheaper in the long run. Talk to an attorney who knows copyright law.