Jason Mazzone

A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain.

Such claims are unlawful, at least under US and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce.

Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.

The term copyfraud was coined by Jason Mazzone, a Professor of Law at the University of Illinois.

Because copyfraud carries little or no oversight by authorities and few legal consequences, it exists on a massive scale, with millions of works in the public domain falsely labelled as copyrighted.

Payments are therefore unnecessarily made by businesses and individuals for licensing fees.

Mazzone states that copyfraud stifles valid reproduction of free material, discourages innovation and undermines free speech rights.

Other legal scholars have suggested public and private remedies, and a few cases have been brought involving copyfraud.

Mazzone describes copyfraud as:

According to copyright experts Jason Mazzone and Stephen Fishman, a massive amount of works in the public domain are reprinted and sold by large publishers that state or imply they own copyrights in those works.

While selling copies of public domain works is legal, claiming or implying ownership of a copyright in those works can amount to fraud.

Mazzone notes that although the US government protects copyrights, it offers little protection to works in the public domain.

Consequently, false claims of copyright over public domain works (copyfraud) is common.

The profits earned by publishers falsely claiming copyrights have been immense.

Section 506(c) of United States Code (USC) Title 17 prohibits three distinct acts: (1) placing a false notice of copyright on an article; (2) publicly distributing articles which bear a false copyright notice; and (3) importing for public distribution articles which bear a false copyright notice.

The prosecution must prove that the act alleged was committed "with fraudulent intent".

Violations of sections 506(c) and 506(d) are each punishable by a fine of up to $2,500.

No private right of action exists under either of these provisions.

No company has ever been prosecuted for violating this law.

Mazzone argues that copyfraud is usually successful because there are few and weak laws criminalizing false statements about copyrights, lax enforcement of such laws, few people who are competent to give legal advice on the copyright status of material and few people willing to risk a lawsuit to resist the fraudulent licensing fees that resellers demand.

Companies that sell public domain material under false claims of copyright often require the buyer to agree to a contract commonly referred to as a license.

Many such licenses for material bought online require a buyer to click a button to "accept" their terms before they can access the material.

Book publishers, both hard copy and e-books, sometimes include a license-like statement in compilations of public domain material purporting to restrict how the buyer can use the printed material.

For instance, Dover Publications, which publishes collections of public domain clip art, often includes statements purporting to limit how the illustrations can be used.

Fishman states that while the seller cannot sue successfully for copyright infringement under federal law, they can sue for breach of contract under the license.

Public domain photos by Walker Evans and Dorothea Lange, available for unrestricted downloads from the Library of Congress, are also available from Getty Images after agreeing to their terms and paying license fees of up to $5,000 for a six-month term.

When photographer Carol M. Highsmith sued Getty Images for asserting they owned copyrights to photos she donated to the public domain, Getty admitted that her images were in the public domain, but said it nonetheless had a right to charge a fee for distributing the material, since "Distributing and providing access to public domain content is different from asserting ownership of it".

Fishman believes that because US federal law preempts state law when it conflicts with federal law, that such copyright-like licenses should be unenforceable.

However, the first two cases dealing with violations of such licenses decided that the licenses were enforceable, despite the fact that the material used was in the public domain: see ProCD, Inc. v. Zeidenberg (1996) and Matthew Bender v. Jurisline (2000).

Collections:

A collection of public domain material, whether scanned and digitized, or reprinted, only protects the arrangement of the material, but not the individual works collected.

However, publishers of many public domain collections will nonetheless place a copyright notice covering the entire publication.

US government publications:

Most of the text, illustrations and photos published by the US government are in the public domain and free from copyright.

Some exceptions might include a publication that includes copyrighted material, such as non-government photos.

But many publishers include a copyright notice on reproduced government documents, such as one on the Warren Report.

Knowing that the penalty for making a false copyright claim on a copied government publication is small, some publishers simply ignore the laws.

Art and photography: Publishers have often placed copyright notices and restrictions on their reproductions of public domain artwork and photos.

However, there is no copyright for reproduction, whether by photograph or even a painted reproduction, since there is no original creativity.

One famous court case which explained that was Bridgeman Art Library v. Corel Corp. in 1999: The "skill, labor or judgment merely in the process of copying cannot confer originality".