Sprigman: You can always sue. That's America.
Starr: But that forces the author to defend the suit, which could be costly, even if it's defeated, as in Bridgeman v. Corel.
Sprigman: The threat of a lawsuit may be the ultimate intimidation. The only thing I would say though to help people not to be so intimidated is that the copyright law provides for fee shifting, so that if you get sued for using a public domain image and you successfully defend the lawsuit there's a good chance that the plaintiff will wind up paying your attorney fees.
Starr: As we've noted, institutions are apparently avoiding initiating these suits.
Sprigman: That's true. The last thing they want is litigation because they are likely to lose. Can I guarantee that? No, because federal courts are notoriously inexpert in and uninterested in copyright. But if the case comes out in any way that it should under the law they will lose.
Starr: So what would you advise those who are hesitant to use photos of works that are in the public domain?
Sprigman: They should know that under the law if the image is "slavish," a mere reproduction, a plain unadorned exact image, they can use it and do not have to pay anyone a licensing fee.
Starr: Thank you, Professor Sprigman.