1

I notice that Wikimedia Commons hosts many images clearly in the public domain (published before 1929 in the US) that have been uploaded from Worthpoint.com. WorthPoint's Terms of Use forbid commercial use, stating: 'WorthPoint grants you a limited, non-exclusive, non-transferable, single-member license to access and use the content on the websites... for personal research purposes only. Under no circumstances may you use any content (except content submitted by you) for commercial purposes. Online or other republication of content is prohibited.' Clearly, posting on the Commons does not constitute commercial use. But what if someone uses such an image, citing Wikipedia as its source, for commercial purposes? Can Worthpoint actually enforce its stated terms of use? As a practical matter, would they be likely to try?

2 Answers 2

2

When the images are clearly public domain, claiming copyright on them is called copyfraud. This is illegal in many countries, but (according to Wikipedia) very rarely is dealt with in court. People or companies try to earn license fees for such public domain works. Somebody not knowing the law might pay, somebody that does know the law (and thus the public-domain fact of a work) will just use it and ignore the alleged usage restrictions. Seemingly good for everyone, as the website with the incorrect claims probably doesn't want to get into trouble themselves - but it's not that easy.

Unfortunately, US courts have ruled that contract law is enforceable even if the work is in public domain. Thus Worthpoint could try to sue somebody taking images from them and upload them to wikimedia commons.

They cannot sue anybody that takes the image from commons, though, as commons can legally host the images after they become PD. And somebody that is being sued could sue Worthpoint back if they indeed sold licenses to PD images (and not only ask money for hosting of the images). That could be successful, but only if he himself lost money.

It would be interesting to know whether the sentence "Under no circumstances may you use any content for commercial purposes." would really still be enforceable today, because it clearly focuses on the content (the images) and not on the service (the hosting and features of the website). Companies may ask for money for the latter, but not for the former if the content is PD. It also seems likely that other courts would decide differently. In Germany, copyfraud could also be sued based on (Un)fair competition legislation, as falsely claiming any rights on a work hinders competitors in using said work for their own business (source).

1
  • 1
    Thanks for this clear explanation. To my mind, an image (or other work) that is clearly in the public domain should be free of restrictions so it can, as the US Copyright Office says, 'inspire new works, adaptations, and derivative works, further enriching the country’s cultural landscape.' But the use of website contracts to 'license' PD is a problem, and is legally messy and uncertain. Public Domain Sherpa outlines the issue well at publicdomainsherpa.com/license-agreement.html Commented Apr 29 at 17:22
2

WorthPoint's terms are limited by the principle of privity of contract to apply only to those who deal with WorthPoint. They have no relevance to anyone else. They do not place obligations on the world.

5
  • So you can't take an image from this site and distribute it. It's not copyright infringement, it's a contract violation. If you get the images from some other source you are fine.
    – gnasher729
    Commented Apr 27 at 21:32
  • But do the contract provisions apply to a third party such as Wikimedia? If the image is public domain, and declared as such on Wikimedia, does it matter where the image came from or under what restrictions it was under (at Worthpoint or any other party). Isn’t a PD image by definition free of use restrictions (in the jurisdiction under which the PD conditions are met)? Commented Apr 28 at 15:12
  • 1
    Wikimedia are not the entity dealing with worthpoint, so no. But if someone is downloading from worthpoint and uploading to wikimedia, then worthpoint could potentially take action against the uploader, but what damages they could ask for would be questionable. Commented Apr 28 at 16:03
  • @user1937198 $150,000 without having to prove damages.
    – gnasher729
    Commented Apr 28 at 20:04
  • 2
    @gnasher729 But they can't claim copyright, because there is no copyright. They can only claim breach of contract so the statuary copyright damages aren't relevant. Commented Apr 28 at 20:30

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .