Can Terms of Use Limit Public Domain Reproduction?

London Street Fiddler 1880

Dear Rich: What if a public domain image is on a site that has its own terms of use restricting what can be done with images from that site? It might be hard for someone to prove that another party who used the photograph came from the contractually limited site, but don't we need to respect contracts? We should respect legally enforceable contracts but we don't think a "terms of use" statement at a website would create such an agreement. We think that the end user must enter into an agreement -- that is, must 'click to agree' or otherwise demonstrate some assent. Recently we posted what public domain expert Steve Fishman had to say about the practice in his excellent public domain guide.

"Many copyright experts believe that licenses imposing copyright-like restriction on how the public may use public domain materials should be legally unenforceable. This is because the federal copyright law prevents people from using contracts to create their own private copyrights. However, almost all courts have ignored the experts and enforced these licenses."