For practical reasons, I want/need to use public domain images in my cover art. I’m not against using paid stock photos per se, but doing do makes the usage very messy in projects with Creative Commons licenses, and I like releasing books under Creative Commons licenses. I could also use images licensed under Creative Commons licenses for my covers, but that gets into issues of incompatibility between different versions of the Creative Commons licenses, which is also messy. The most practical solution is either to take the photos myself (not out of the question, but not trivial and not done yet) or to use imagery in the public domain. So far, I have adopted images that I believed were in the public domain for my cover artwork. Most of these images have come from Pixabay.com.
Unfortunately, today I discovered that the people who operate Pixabay.com have a different idea of how an image becomes part of the public domain than I do. Specifically, they have defended contributors who uploaded photos while describing the process as “licensing” the images and listing “terms” to which their usage is subjected. The problem is that public domain is not a license; it is a waiver of rights, and U.S. law makes no provision for how to do that, so even with the best intentions, it is hard to get right, perhaps even impossible. If there were ever a dispute, it would be up to the user of the image (me) to prove that the creator of the image (whoever that is) understood what he or she was doing and fully intended the images to be in the public domain, usable by anyone for anything with no restrictions whatsoever. When the image creator can point to the “terms” of the “license” under which the image was posted, the case is easy. Spoiler alert: I lose.
Also unfortunately, however sincere the original poster might have been, the rights will eventually fall to his or her heirs (copyright protection in the U.S. is currently for the life of the creator plus 70 years, though this is likely to be extended in perpetuity). If money is to be had, you can be sure that heirs will come for it, regardless of the intent of the original creator. Nina Paley famously lost an infringement case for more money than she made from Sita Sings The Blues, which she had made partially using materials she believed to be in the public domain. When the heirs of one of the original content creators found out that she had been monetarily successful using the content they now owned the rights to, they found a way to get the money.
The problem arose when I noticed that the featured image at Pixabay.com had a copyright notice on the bottom right corner. Furthermore, the uploader had helpfully listed the “terms” for using the image. And unfortunately, when I brought it to the attention of the staff of Pixabay.com, they indicated that they did not see this as a problem. Meaning, not only was this particular image unsafe to use, none of the images on Pixabay.com can now be considered safe to use, because they do not understand the hazard, and they allow uploads from people like this. They actually went so far as to say this person was a good example of someone who “got” the public domain.
Wow. Just, wow.
Fortunately, my books are currently only available in e-book form, and it is easy to change the covers of e-books. Unfortunately, I liked the images from Pixabay.com. I don’t have another good source, and I don’t have time to hunt down images. Also unfortunately, I’ve seen the same problem with other websites, such as gratisography.com: the photographer happily uploads his images and flags them as CC0, meaning public domain, then describes that as a “license” and has a page of “terms” for using them. That is not public domain; that is images under a license.
I need/want to contact the nice people at the Creative Commons about this. The FAQ for their Creative Commons licenses helpfully points out that if you add your own terms, it’s not a Creative Commons license anymore (and you aren’t allowed to imply or say that it is). They need to add a post to their CC0 FAQ to point out that if you attach terms to a release of something, it isn’t a public domain release, it’s a release under a license made up of your terms.
Finally unfortunately, even if I can convince the Creative Commons people to make a bold statement about this, and even if the people at Pixabay.com are convinced to change their standards, the images of Pixabay.com and many other archives are now suspect, and it will take time to go over the content and purge what is questionable.
This is going to cost me precious time to deal with, maybe a lot of it.
(Note that this is not intended to disparage Pixabay.com. I think their hearts are in the right place, and I’m happy that they are working to advance the public domain. I do think, however, that their understanding of copyright law is flawed, and that this misunderstanding has poisoned their project. I hope it can be fixed.)