§ 1—Complaint

  1. The Smithsonian Institution's Terms of Use and Licensing Policy are in violation of 17 U.S.C. § 105 (the “works of government” clause of the Copyright Act) and 20 U.S.C. § 41 (the “increase and diffusion of knowledge among men” clause of the Smithsonian Charter).

§ 2—Complainant

  1. This complaint is submitted by Public.Resource.Org, a non-profit corporation incorporated in California and qualified under section 501(c)(3) of the Internal Revenue Code.

§ 3—Co-Complainants

  1. Those wishing to make their opinions known in this matter may join in the complaint as amici atticus by submitting their statements to the following address:
    What Would Luther Burbank Do?
    Public.Resource.Org
    1005 Gravenstein Highway North
    Sebastopol, CA 95472

§ 4—Facts of the Case

  1. Mindy Sommers is an artist who lives in a purple house in Vermont with her husband and two cats. She makes artistic products available for sale on the Color Bakery.
  2. The Smithsonian Institution maintains a Seed Catalogs web site which the Institution describes as:
    The Smithsonian Institution Libraries have a unique trade catalog collection that includes about 10,000 seed and nursery catalogs dating from 1830 to the present. Many of the trade catalogs were part of the Burpee Collection donated to the Horticulture Services Division by Mrs. David Burpee in 1982. The collection includes both Burpee and their competitors' catalogs.
  3. On January 3, 2011, Mindy did offer for sale a product named Vintage Seed Catalog Digital Collage Sheet Five for $9.95, featuring a 4500 pixel wide artistic production which she described as:
    Vintage seed catalogs are quite beautiful pieces of art, and sought after and treasured by both artists and collectors alike. These collage sheets measure 4500 pixels on their longest sides, at 300 dpi. Each seed catalog image is 300 dpi and 7" at the longest side. Most of them measure about 5" x 7", making them ideal for printing (and yes, selling) greeting cards, which is a permitted use. Each sheet has four images.

    All Digital Kiss artworks are taken from 3600 dpi scans that are painstakingly and expertly restored, retouched and enhanced. Many are altered dramatically.
  4. On February 4, 2011, Mindy received a “take down” notice from an official of the Smithsonian Institution:
    My name is Erin Rushing and I handle rights and reproductions for the Smithsonian Libraries. It has come to our attention that you have been selling commercial products based on our images.

    This vintage seed catalog collage features several images that are identifiable by unique tears, etc. as being from our collection. Unless you have previously contacted us for a high resolution copy of the image, it is unlikely that what you are selling is true high resolution or high quality digital file.

    We request that you either take down the works that feature our images or follow the proper rights and reproductions channels (www.sil.si.edu/imagegalaxy/imageGalaxy_UseFees.cfm)

    For more information about the appropriate use of Smithsonian images, please see the Terms of Use:www.si.edu/Termsofuse

    Thank you for your attention to this matter. Please feel free to email me at rushinge@si.edu if you have any questions.
  5. As joined by artistic, commercial, and non-commercial institutions and individual members of the community as specified below (see § 7, New Creations in Arts and Commerce) and as supported by others as specified above (see § 3; Co-Complainants), Complainant does hereby plead this case as follows.

§ 5—The Law

  1. 17 U.S.C. § 105 specifies that “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”
  2. 20 U.S.C § 41 “constituted an establishment by the name of the Smithsonian Institution for the increase and diffusion of knowledge among men.”
  3. The Terms of Use of the Smithsonian Institution, which are prominently and systematically displayed on all digital properties under the label COPYRIGHT warn in no uncertain terms:
    Do not use the Content to promote, advertise, or sell your own products or services or for any other commercial or unauthorized purpose.
  4. The Licensing Policy of the Smithsonian Institution, which are prominently and systematically displayed on all digital properties under the label PERMISSIONS explains:
    Licensing and imaging fees directly support our collections and projects. Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used.
  5. The Smithsonian Institution is an instrumentality of the United States, chartered by the Congress, and the recipient of $745.8 million dollars in federal appropriations in FY 2009. The Smithsonian Institution receives use of some of the most valuable real estate in the country. The Smithsonian Institution is not allowed to claim copyright in ownership in items unless it falls under specific exemptions, such as a specific requirement by a donor that copyright be maintained on specific items.
  6. The Smithsonian Institution intellectual property policies are unique in the Federal Government. The Library of Congress, the National Archives, the Government Printing Office all explicitly waive any copyright, ownership, or undue restrictions on use of materials. For example, the National Archives is very clear on the subject:
    May I reproduce images from your web site?

    The vast majority of the digital images in the Archival Research Catalog (ARC) are in the public domain. Therefore, no written permission is required to use them. We would appreciate your crediting the National Archives and Records Administration as the original source. For the few images that remain copyrighted, please read the instructions noted in the "Access Restrictions" field of each ARC record.
  7. Assertions of copyright, control, and ownership must conform to the provisions of the law. The Supreme Court ruled as such in the case Wheaton v. Peters (33 U.S. 591, 1834), stating:
    That every man is entitled to the fruits of his own labour must be admitted; but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society, and which define the rights of things in general.

§ 6—Relief Requested

  1. Injunction. That the Smithsonian Institution be instructed to cease and desist all further “take down” notices until this matter has been thoroughly investigated.
  2. Investigation. That the Board of Regents investigate and analyze the intellectual property policies of the Smithsonian Institution to determine if such policies are in violation of the Copyright Act or the Smithsonian Charter.
  3. Restitution. That the Smithsonian Institution work with the community to create high-resolution scans of the Seed Displays source material that is not under copyright by external, non-governmental entities and that such high-resolution scans be released on the Internet with no restrictions on use.

§ 7—New Creations in Arts and Commerce

  1. In solidarity with Mindy, a number of actions have been undertaken to promote the increase and diffusion of the Smithsonian Institution's Seed Catalogs in direct violation of the Terms of Use and Licensing Policies.
  2. The 329 Seed Catalogs visible on the Smithsonian properties were harvested and planted on Flickr. These low-quality images have been subsequently reworked and retouched and then reconstituted and replanted on Flickr.
  3. Point.B Studio has created a limited-edition triptych of museum-quality prints entitled What Would Luther Burbank Do? These prints were commissioned by Public.Resource.Org and are being offered to museums and corporate art spaces as part of an effort to create an awareness of Luther Burbank, the Smithsonian, and copyright law.
  4. In the belief that if you are trying to explain complicated questions of copyright law to members of Congress it is easier to do so over a cold frosty brew, members of the International Amateur Scanning League have created Our Nation's Attic: An American Pale Ale. Volunteers will be spreading out around Washington, D.C. with coolers to explain to policy makers why the Smithsonian Institution is in violation of the law. This open source beer comes with directions for making (and changing) the recipe, is made with Victory Malt and Liberty Hops, and features artwork on the label which makes use of the seed display catalogs.
  5. To accompany Our Nation's Attic (and to make perfectly clear that this work is being used in commerce), Public.Resource.Org has created and is selling Smithson Steins, beer mugs that feature artwork from the seed display catalogs. Not a beer drinker? You might want to try a nice hot cup of coffee in one of four handsome Increase and Diffusion of Mocha Mugs.
  6. Featuring art from the Seed Catalogs, 4,200 postcards were printed at Moo.Com® and then be sent via the U.S. Postal Service® using custom Photo Netstamps® featuring the Smithsonian art. Activists throughout the community are encouraging citizens to express their thoughts on the matter on these postcards to be submitted to the United States Congress. Postcards and other submissions by amici atticus will be scanned and published to @LutherTweets.

§ 8—What Would Luther Burbank Do?

  1. Public.Resource.Org is located in Sonoma County, California, the home of Luther Burbank, a pioneer in botany, horticulture, and the science of agriculture. With his publication in 1893 of “New Creations in Fruits and Flowers” and for decades thereafter, Luther Burbank became a symbol of the power to vary, producing more than 800 fruits, flowers, trees, cacti, and other botanical creations. To Luther Burbank, we owe the Burbank Potato, the Shasta Daisy, the Freestone Peach, the Plumcot, the Royal Walnut, the Giant Pink Rhubarb, and countless cacti. To Luther Burbank we owe the inspiration millions of Americans took from his work and brought home to their own gardens, farms, agricultural extensions, research laboratories, and commercial nurseries.
  2. Luther Burbank built his enterprise on an infrastructure that began to take shape in 1862 when Abraham Lincoln signed the Organic Act, the Homestead Act, and then the Morrill Act, leading to the creation of the land-grant colleges, the agricultural extensions, and the Department of Agriculture and spreading seed packets, pamphlets, and demonstrations throughout the country.
  3. The Smithsonian played a central role in another grand enterprise during this same period when Joseph Henry, the first Secretary of the Institution, helped create our modern weather service. Joseph Henry got 600 weather boys and other volunteers around the country to agree to take measurements, and then he convinced the telegraph companies to give him free access to telegraph lines. With this data, he created his famous national weather map, which was updated throughout the day outside the Smithsonian's headquarters. Abraham Lincoln would often stroll down to the Smithsonian to see what the weather was like and have a drink with Secretary Henry, and newspapermen copied those weather maps to report the weather in local editions around the nation.
  4. Abraham Lincoln, in his 1859 speech at the Wisconsin State Fair, said that “every blade of grass is a study; and to produce two, where there was but one, is both a profit and a pleasure.” The role of the Smithsonian is the increase and diffusion of knowledge, the making of new creations in art and commerce. Building fences around the public domain in an attempt to extract rent is contrary to the charter of the Institution and contrary to the law.
  5. The Smithsonian Institution should flip the switch from the current default of “access denied” towards “a presumption of openness,” bringing the intellectual property policies of our nation's attic into conformance with President Obama's Open Government Directive.
Last Revised: 6/9/11 04:24 PM