- The Washington Times - Sunday, May 20, 2007

Grabbing pictures of iconic Smithsonian Institution artifacts just got a whole lot easier. Before, if you wanted to get a picture of the Wright brothers’ plane, you could go to the Smithsonian Images Web site and pay for a print or high-resolution image after clicking through several warnings about copyrights and other restrictions — and only if you were a student or teacher or were pledging not to use it to make money.

Now you can just go to the free photo-sharing Web site flickr.com.

A nonprofit group is challenging the copyrights and restrictions on images being sold by the Smithsonian. Instead of going to court, the group downloaded all 6,288 photos online and posted them Wednesday night on the free Internet site.

“I don’t care if they sell the photos, but then once they sell it, they can’t say you can’t reuse this photo,” says Carl Malamud, co-founder of the group Public.Resource.Org, advocates for posting more government information online.

“You’re not allowed to chill debate by telling people they can’t use something because it’s under copyright when that’s not true.”

Most images the Smithsonian is selling, including photos of artifacts and historic figures, are not protected by copyright, Mr. Malamud says. However, the Smithsonian site carries copyright notices and other warnings that would discourage most people from using historic images that should be available publicly, he says.

Mr. Malamud testified last year in Congress against the Smithsonian’s long-term television deal with Showtime Networks because he says it could restrict public access to the national museums’ archives. He also is critical of other Smithsonian business deals, calling them “privatizing of the archives.”

Smithsonian spokeswoman Samia Elia says officials were aware of Mr. Malamud’s objections. “We’ve received Mr. Malamud’s letter, and our general counsel is reviewing the matter,” she says.

The photos are separate from an image sales deal the Smithsonian announced earlier this year with Corbis Corp., she says.

Images made by federal government employees are exempt from copyright law and are considered to be in the public domain, says Robert Brauneis, a George Washington University intellectual property law professor. Most Smithsonian employees are considered federal workers because their salaries come from taxpayer funds.

The language of the restrictions on the Smithsonian Images Web site appears to be using contract law to extend the Smithsonian’s rights beyond copyrights, he says. One provision states, “even in the absence of copyright, Smithsonian still reserves all rights to image use.”

“It’s not clear to me how it would make sense to say this photo is not under copyright and yet we own it and you can’t use it,” Mr. Brauneis says. “Contracts can sometimes go beyond copyright law, but exactly how far and when is not completely clear.”

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