File:Sayler Park - Bridgeport tornado.jpg

For many years, hosting such images on the Commons was done in good faith under the rationale that:

• public submissions to the NWS all entered the public domain and/or
• all files hosted on NWS websites were in the public domain unless they carried a formal copyright notice

An extensive review of this rationale in 2024 revealed that neither of these beliefs held up to scrutiny. These findings were confirmed in an RfC conducted from August to October 2024.

This is a rare instance where we have some insight into how the image made its way into the hands of the NWS, because they not only posted the photo, but the cover letter that accompanied it.

Pre-1989, copyright on creative works in the US would be voided if they were "published" without a copyright notice. "Publication" extended beyond just the common meaning of the word (books, magazines, newspapers, posters, postcards) to potentially include any distribution of a work beyond its creator's control: even offering a copy to "the public" or distributing a single copy of an image could be held to be publication.

To offset the harshness of this, and of creators unintentionally voiding their copyrights, US courts developed a doctrine of "limited publication" to distinguish circulation of a work from general publication. "Limited publication" without a copyright notice would not void a creator's copyright.

Although case law is somewhat inconsistent, and can vary from circuit to circuit, generally, limited publication has to satisfy three elements. The distribution of the work had to be:

• to a limited (select) group of people
• for a limited, specific purpose
• with a limitation on further distribution

The case law around all three of these elements is murky, and murkiest of all around this third element. In key cases around "limited publication", the limitation on further distribution was held to be present even when not specifically stipulated by the creator (Academy of Motion Picture v. Creative House, Estate of Martin Luther King, Jr., Inc. v. CBS, Inc.) . Rather, courts considered how such works were generally treated by the parties to whom they were distributed, and also what actually had happened to such works after distribution, not just what the recipient was not specifically disallowed to do with the work.

Turning to this image:

1. In 1974, Frank Altenau, a resident of Cincinatti, Ohio, took two Polaroid photos of a tornado
2. He showed his photos to one of his co-workers, Martha Metsch, who happened to be a volunteer weather observer for the NWS and who took the readings at the Cheviot Weather Station. Such weather stations are not offices, but simple collections of instruments distributed across thousands of sites across the US to enable volunteers to take readings to submit back to the NWS. We have photos of a few here. There is no indication that Mr Altenau was also an NWS volunteer, and we have no idea of who his and Ms Metsch's joint employer was. (That is, we have no reason to think that Mr Altenau was a federal employee performing his duties when he took these photos).
3. Ms Metsch mailed photocopies of Mr Altenau's Polaroid photos to the NWS regional office at Cincinnati, with the cover letter linked above. Ms Metsch's letter contains no statement about limiting further circulation of the images, and the copy published on the web includes a hand annotation that suggests that her letter was posted somewhere (a notice board?) for staff of the regional office to see.
4. Many years later, a scan of one of those photocopies was published on the NWS website: https://www.weather.gov/iln/19740403 and eventually made its way here to the Commons.

I think that the first two elements of limited publication are easily satisfied:

• distribution was not to the public but to a limited, select audience -- the NWS forecasting office in Cincinatti
• distribution was for a specific purpose -- a weather observer reporting a weather phenomenon that might be important or interesting

I also believe that further distribution was limited, not by an explicit statement, but by common practice, and demonstrated by how, in fact, the NWS handled the image that had been submitted:

• although in the Internet age, the NWS frequently publishes weather photos submitted by the public, this was not the case in 1974. NWS publications at the time do not contain images like this. Indeed, the journal in which photos like this would now be published (alongside the NWS website), Storm Data contained no photos of any kind. (April 1974 edition downloadable here and the tornado is described in text only on page 14. Storm Data is published at the end of the month, so the NWS was in possession of this photo by that time.
• the image received by the NWS was a photocopy of a Polaroid, whose quality itself limited its suitability for further reproduction and distribution
• the NWS did not, in fact, undertake any further distribution of the image until the Internet era when the value of such images, particularly of historic events not otherwise photographed, increased, and the barriers to reproduction and dissemination decreased.

That is, based on common practice of the day, neither Mr Altenau or Ms Metsch had any reason to think that the NWS would be further circulating the image; and nor did the NWS do so at the time. This is evidence of an implicit limitation on distribution, as in the cases I referred to earlier.

I think this constitutes only limited publication, and therefore, Mr Altenau's common-law copyright was not divested by the photocopy made in April 1974. In the absence of evidence of any other publication event, or transfer of copyright, this common-law copyright continued to exist until March 1, 1989 when it was replaced by a statutory copyright under the new Act and still in force today.

Per COM:ONUS it is the responsibility of the person uploading an image to the Commons or anyone arguing for its retention here to provide evidence of permission from the copyright holder or that copyright was lost or transferred. Without such evidence, this is a presumably unfree file and we must delete it as a precaution under COM:PRP.

I have previously sought input about this image in a VP/C discussion, where opinion was divided as to whether this constitutes general publication (that voids common-law copyright) or limited publication (which preserves it). PInging participants in that conversation who might want to share thoughts here too: @Clingberg: @D. Benjamin Miller: @Glrx:

Closing admins should familiarise themselves with the evidence and discussions at this RfC when closing this request.