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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 (
For more information about the appropriate use of Smithsonian images, please see the Terms of
Thank you for your attention to this matter. Please feel free to email me at 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.


  1. I've written a short response here:

  2. This sounds like the whole issue could have been avoided if Mindy has contacted the Smithsonian before selling their scans.

    A friend publishes books on scale model rocketry, which include both photos and dimensional drawings that are in the public domain (copyright expired). He does make money selling these books, but he added value. He spent a lot of time in archives and in communications with librarians to get these documents. He educated himself on copyright law and let everyone he contacted in the various archives know what he was doing, and acknowledged the individuals and organizations in the book. Most people were excited to be involved. He also added value by assembling a bunch of data from different sources into one place, and clearing up discrepancies and errors. People love the book because he's the only person ever to have done this.

    As far as I can tell, all Mindy is doing is selling something that is intended to be available for free in the public domain. And it sounds like the whole hullabaloo could have been avoided had she let the Smithsonian know what she was doing, or credited them in some way.

    At the same time, trying to use Burbank as a poster child for something one can have NO IDEA he would, or would not, support, is petty, too.

    Uncool on both sides, but Mindy is the only one making money off it.

  3. If she were using the original copies that would be one thing BUT the Smithsonian probably did invest quite a lot of time and money making those scans and I'd be annoyed if someone just started using them too. I'm not necessarily sure the scans of non-copyrighted material can be copyrighted BUT I'm also not a big fan of just taking things from their website without permission. I feel like most museums have policies against using pictures of their collections for private gain

  4. @David, I read your response and agree with you.

    @Monica, What your friend does with public domain works is really the way it should be done. And while we don't know specifically how Luther Burbank would side I think his feelings on patent protection are a pretty good indicator that he would not agree with someone making money off of the work of other people.

    @Tom, I too think if she had scanned the originals (or other works in the public domain) it would be a different case and not something that anyone could find fault with.

  5. Yeah, I don't see where in the letter the Smithsonian is overreaching themselves. Photographers hold the copyrights to their photographs as with any other work. The Smithsonian has every right to demand that you not use their images, if these were pictures she had taken herself they might have a point. Moreover their primary concern is for the quality of the images, which is consistent with their aims to "protect the integrity" of their collection. It would be nice of them to make some Public Domain copies available for general use, but they are under no obligation to scan or photograph their collection for that usage.

  6. Just because someone likes seed package images doesn't make her an honest person. The Internet makes it way too easy to take advantage of others. Good post, MGT.

  7. Interesting question.

    My mother in law is a historian who's written lots of books on various places using old postcards and photographs to tell the tell. Anything that wasn't part of her own extensive catalogue of images was sourced from various libraries and museums. In every case she paid a licence fee in order to reproduce those images even though they were sourced from items that were way out of copyright.

  8. This is difficult and I see both sides,but I would tend to side with the Smithsonian. That was original artwork and their digital work.

    You should always use "original" art work for creating any piece of work to sell. If you are selling it to the public you need to get permission if it is not your own work. General knowledge, but people do steal artwork.

    I read that you can get in trouble if you try to sell plants that have a patent on them, is that true? For example, you take a cutting and sell it to the public. robbie:-)

  9. Enjoyed reading this post.

  10. Yep, I also think Mr. Burbank would side with the Smithsonian in this case. If I hadn't read Ms. Smith's book, (an excellent, highly-recommended read!) I probably wouldn't have an opinion on the subject.

    I'm not sure I agree with Plant Patent Act, especially since its passage is what paved the way for the patenting of GMO seeds. Regardless of what I think about that, since Mr. Burbank fought for the passage of the law, I doubt he'd approve of the for-profit use of unauthorized reproductions of the Smithsonian scans.

  11. @Capheind, Do you think that recieving federal funding obligates them to do it? What about the point that WWLBD raises about their charter and mission?

    @Webb, The Internet seems to make it really easy to make money off of the works of other people.

    @VP, The way your MIL sources her images seems to be the way to go about something like this to avoid any conflicts.

    @Roberta, If a plant is protected by a patent you can indeed get in trouble for propagating it and trying to sell it.

    @Daphne, Thanks!

    @Garden Girl, Thanks for adding your take on the case. Agree with you that Jane's book is a good read and something people who are interested in Luther Burbank should look into reading.

  12. Got to your post while doing a Google search on "seed catalogs" and went to visit the Smithsonian site (which I've perused several times) to snatch a couple more images for homemade seed envelopes. However, I then read your post and have to say I would never DREAM of snatching those images and reselling as if they were my own creation. Even if the images have had some touching up (I touch up the images sometimes too, but they are used for my own enjoyment), it's still the work of someone else. The catalogs and their art may now be in the public domain, but I think I would have to lean towards the Smithsonian's position if forced to pick a side.

  13. Anonymous5:01 PM

    Luther Burbank:

  14. Anonymous7:41 PM

    Mindy scanned, retouched and enlarged those images. They are her scans, and her work. She is allowed to profit from it. If you've ever enlarged and retouched a scan and made it usable for other artists, you'd realize how work intensive it is, and in our society, it's permissable for people to get paid for their labor.

    1. Can you show evidence as to her scanning the images? how did she gain access to the originals of the library without jumping through the bureaucratic hoops mentioned in the take down notice? The scans of the images of the Smithsonian fit perfectly over her scans. So, it seems (unless you can provide some proof) that she just took the large versions of the files available from the Smithsonian and Photoshopped them. In our society profiting off the works of others is frowned upon, no? Lastly, she didn't create the cans to make them "usable for other artists" did she? No, she posted them on her Etsy account to make a buck. Not exactly the charity case you want to make it seem like.

    2. The Sower11:58 PM

      Wow, winter gardening must be slow for you guys to be sliding into public domain and digital art. For the record, I'm Mindy's husband. And, unfortunately, this blog was pointed out to me and it was suggested I might want to have a few comments about a territory that may be a bit out of your area of expertise.

      Clearly, what's missing here is an understanding of public domain laws concerning art, and the role of the Smithsonian Institute in American Society.
      For me to really talk about these subjects is a heck of a lot more than I want to type, and undoubtedly a heck of a lot more than you want to read. But respectfully, you guys don't know what the heck you're talking about.

      All art before 1923 is public domain, with some exceptions of name and logo copyright, such as Coca Cola. That is a concrete law as it stands now and, any art before then, anybody can reproduce all they want, when they want, and how they want. That includes Mindy and the Smithsonian, not to mention every American citizen. After 1923, it gets very tricky and you're on a slippery slope. (By the way, the Smithsonian makes thousands upon thousands from reproducing the archival versions of these seed packs on prints and products. Mindy nets about 100.00 a year.)

      The Smithsonian was chartered by the US Congress in the early nineteenth century to collect items by the American people, for the American people and their moves to profit by them instead of keeping them open to the American people is a legitimate point of contention. They are clearing flouting their charter by the US Congress, and this issue certainly deserves to be heard in a federal court. I can drone on for quite a while about this charter, but if you're interested in it, you really should research these things for yourselves. It's kinda like me coming on your blog and telling you how to grow poinsettias--it would be totally insane.

      I will leave you with this one little tidbit of logic: laws of this nature exist for very prudent reasons. Every succeeding generation builds upon the work of previous generations. That includes the delights you derive from gardening, and the way that we make a living from art. In the field of art, we owe a nod to the guy who first drew a straight line. The person who came up with circles should have had it copyrighted. The person who figured out oil-based paints in medieval times--I guess you think his family should still be cleaning up. In other words, where do you draw the line? As it is now, great great grandchildren who had nothing to do with a masterwork is going to draw royalties in the 22nd century. And like the art galleries through the centuries, will choose to close off that access to that art for many generations. And it seems some of you would opt to close off all the art to everybody. All artists take from each other, build from each other, get inspired from each other. Very rarely is anything totally and completely new created.

      My wife is a professional, licensed artist. She created a rather standard Christmas theme, but slightly altered the classic red and green colors. In January, at a major trade show in Atlanta, that manufacturing company made it their feature line and it generated quite a bit of buzz at the show. We know of a big box retailer in Canada that will be featuring it throughout Canada, and there are major deals throughout the US. But here is my point: if that color scheme is a major hit, in about two years you're going to see that color scheme on other Christmas products--and there's not a thing we can do about it. All art is derived from somebody else's work. She borrows from someone else, and they borrow from her. And frankly, ladies and gentlemen, some people whose primary interest is gardening obsessing about the dog eat dog world of art is a bit silly. I am open, though, to hearing how you think I should grow bearded irises. Because frankly, I'm struggling with them. Have a great day.

    3. Mindy's Husband,

      If the point of your comment was to educate people on a subject you feel we (mainly I since this is my blog) don't have an understanding of, I have to say that you didn't succeed. Nothing you presented rose above the cursory explanation of the issue at hand or copyright law from the post.

      For someone who thinks you have such a grasp of copyright law and public domain you sure don't explain much. What's at issue here is taking something created (the digital scans by the Smithsonian) and doing a bit of Photoshop and selling them when you don't have the rights to use the digital scans created.

      If your wife had found the seed catalog artwork in a thrift shop or garage sale, like many do, and had made her own scans the Smithsonian wouldn't have a case because the artwork is in the public domain. But that's not what happened, is it?

      Your comparison between the issue at hand and the color theme show that you lack an understand of copyright laws and even what is being discussed here. There's no "borrowing" or "building" in what you wife did with the catalog images. She just Photoshopped out wear and tear out of the scans. Quite frankly, she ruined them by removing the traces of age and history that those flaws exemplified and presenting them in such an artificial light.

      Finally, I find you trying to invoke the "re-mixing" culture insulting since your wife's watermark over the seed catalogs goes against the share and share alike ideal you're trying to wrap yourselves up in.



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