What Would Luther Burbank Do?

The Smithsonian Institution maintains an online collection of vintage seed catalogs of about 10,000 seed and nursery catalogs dating from 1830s in their archives. Many of the catalogs were part of the Burpee Collection donated to the Horticulture Services Division by Mrs. David Burpee in 1982. The impressive collection maintained by The Smithsonian includes seed catalogs from Burpee its competitors and smaller companies like those of Miss C.H. Lippincott.

Vintage Seed Company catalogs
Vintage seed catalog examples from the Smithsonian Libraries.

On January 3, 2011, Mindy Sommers an artist who sells items on Etsy offered for sale a product named Vintage Seed Catalog Digital Collage Sheets Five for $9.95 that featured a 4500 pixel wide reproduction of covers of the catalogs by D.M. Ferry & Co, J.M Thornburn & Company, and the Henry A. Dreer companies. The work produced by Mindy Sommers consists of these catalog scan uploaded by The Smithsonian with some retouching.

Vintage Seed Company catalog copyright violation
Screengrab of Etsy page in question.

Just a month later, on February 4, 2011, Mindy received a “take down” notice from Erin Rushing who handles rights and reproductions for the Smithsonian Libraries. According to Public.Resource.Org, who founded What Would Luther Burbank Do? the notice reads:

“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 [email protected] if you have any questions.”

In response Public.Resource.Org formed What Would Luther Burbank Do? to request an injunction against the Smithsonian Institution to be instructed to “cease and desist all further “take down” notices until this matter has been thoroughly investigated. In addition they want the Smithsonian Institution to work with the community to create high-resolution scans of the seed catalog source material that is currently not under copyright by external, non-governmental entities and that such high-resolution scans are released on the Internet with no restriction on use. At the What Would Luther Burbank Do? page you can join the complaint against the Smithsonian Institution as “amici atticus.”

In solidarity with Mindy several actions are being undertaken to raise awareness about the complaint and to disseminate information on the Smithsonian Institution’s collection of seed catalogs. Someone has harvested 329 seed catalogs made available online by the Smithsonian and planted them on Flickr. There are triptychs, postcards, beer steins and coffee mugs made from these same catalogs available for sale. You can even follow the @LutherTweets account on Twitter the group has started.

As a gardener and someone who fancies himself a “content creator” I can’t decide who to root for in this case. On the one hand you have the Smithsonian Institution copyright trolling over vintage seed catalogs whose copyright has long-ago expired. Based on my layman’s interpretation of copyright law I’m willing to grant them that they own the copyright of the digital scans they created. Digital scans are not that much different than photographs that are protected by copyright law. But the seed catalogs themselves are now in the public domain. As a gardener that starts plants from seeds, saves seeds and has an interest in the history of America’s seed companies I can support the efforts of Public.Resource.Org to bring the Smithsonian’s seed catalog collection out into the public’s view and use. On the other hand, you have Mindy Sommers who took images (digital scans) created by the Smithsonian Institution, that are being argued belong to all of us, slapped her watermark on them and is profiting from sales of what really belongs to all Americans. By adding her watermark to the images on her Etsy page she’s in essence claiming ownership over something she had little to no involvement in creating and doesn’t even own. Isn’t this basically the grounds for the complaint against the Smithsonian?

Luther Burbank image via Wikipedia

I find invoking Luther Burbank’s name and the question posed by What Would Luther Burbank Do? more than a little puzzling and naive. What Would Luther Burbank Do? is a play on What Would Jesus Do? the phrase used by Evangelical Christians to remind themselves to live their lives in a way that adhere to the teachings of Jesus Christ. Luther Burbank was a great man in many respects. His greatest accomplishments in life were in the field of agriculture, and he developed many new plants that transformed the business and our country.  Among his more than eight hundred new varieties of fruits and vegetables, flowers, nuts, and grains are: the Burbank potato, Burbank rose, Shasta daisy, and spineless cacti. The use of his name and likeness in this campaign implies that Luther Burbank would side with Public.Resource.Org and Mindy Sommers against the Smithsonian. A casual examination of the plant breeder’s life would shed some insight into the answer posed by the group’s campaign.

To attempt to answer the questions What Would Luther Burbank Do? I turned to Jane S. Smith, author of The Garden of Invention, and asked her who she believes Burbank would side with based on her years of research into the plant breeder’s life for the book. She writes:

Luther Burbank regretted that he never had any intellectual property protection for his creations during his lifetime.
Two of his perpetual torments were
1. sellers who took his plants, multiplied them in their own nursuries without authorization, and put them on the market in competition with his approved dealers.
2. sellers who simply attached his name to whatever they were marketing introducing inferior products and tarnishing his hard-won reputation.
Burbank’s frequent comments on the injury to plant inventors from those who “steal” their work  were cited in the successful campaign to pass what became the Plant Patent Act of 1930, six years after his death. One might argue that Burbank’s own plant inventions grew (so to speak) from his creative alteration of existing material, but I don’t recall any instance of his making unauthorized use of explicitly protected objects.So, it seems to me Burbank would side with the owners ( the Smithsonian), and against the Etsy seller. I have to add, though, that Luther Burbank was all too prone to give opinions on issues on which he wasn’t really informed. Hope I haven’t followed his example.

Given that Burbank never profited from his plant introductions in a manner that was equal to their importance and popularity and that he constantly complained about this, I’d say Luther Burbank would probably side with the Smithsonian.

The WWLBD page lists the price of the image in question as $9.95, but at the time of my screengrab it is listed as $19.90. If you’ve liked to join the WWLBD? campaign visit the webpage. To learn more about Luther Burbank I recommend reading The Garden of Invention by Jane S. Smith. Her forthcoming book, In Praise of Chickens, will be published in December by Lyons Press.

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