At 12:10 PM 5/16/2006, Larry Steller wrote:
>If someone digitizes an embroidery design from copyright free clipart,
>can they claim to own the copyright to the design ?
>
> From what I've read, my conclusion was once something was copyright
>free, in the public domain, it couldn't be copyrighted. Am I wrong ?
>
>Example, I created hundreds of digitized red work embroidery designs
>from copyright free clipart over the past 7 years, only to have a company
>claim to Ebay I was infringing on their intellectual property rights. Since
>the clipart used was copyright free, I thought the designs couldn't be
>copyrighted, so how can I be infringing on their intellectual property rights,
>when I have the right to sell what I created from copyright free clipart/
>images ?
The attorneys on this list will have more authoritative answers than
I, but I am familiar with some of the issues and may be able to comment.
- Clipart usually comes with a license agreement. Clipart on CD's
usually says something like "you may print as much as you like, but
don't upload to wide area networks (like the web)." Clipart in books
often says (in the permissions section of the book) something like
"use the images freely but don't put more than five of them on a
place from which they may, in turn be copied."
- In the case that such "licensed" clipart originates with public
domain sources, the publisher is generally relying on a "compilation
copyright." That is, though each individual image may be in the
public domain, the decisions about how to assemble these individually
unprotected items are sufficiently original to qualify (in the eyes
of the publisher) for a copyright in the assemblage, just as a
protected poem consists of individually uncopyrighted words. The
publisher can argue that without such protection there is no
financial incentive for them to produce the work.
- Some might argue that an individual work reproduced by a publisher
of works from public domain sources somehow qualifies for a new
copyright, but the ruling in the case of Bridgeman Art Library v
Corel (see for example
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm)
yielded that there is insufficient originality in a "faithful
reproduction" (my quote) of a 2 dimensional artwork to qualify for
new protection. Having done a good deal of faithful reproduction
myself (see for example
http://srufaculty.sru.edu/david.dailey/public/public_domain.htm), I
am aware that many of the decisions that go into that reproduction
require skill, and sometimes decisions about when to discard
"useless" pixels introduced through discoloration through aging of
the original, moire patterns from interactions of the pixel density
with the engraver's line frequency, etc., etc. One could argue that
veridical depiction in the case of preservation of engravings might
require more originality than the case decided in Bridgeman, and I
can certainly imagine that some publishers might be willing to make
such an argument in court.
- In an instance such as when a publisher reproduces all
illustrations in a famous PD work, ( for example, l'Ornament
Polychrome by Racinet from the 1880's) then one could question
whether sufficient originality exists for either the compilation
copyright or a "thin" copyright on the reproduction. Whether a
publisher's license agreement with such a republication would, in
fact, hold up in court, is not clear (given the precedent in
Bridgeman), but what devotee of the public domain would wish to be
the defendant in such a case?
As a little bit of advice (of the non-legal sort), you will be more
comfortable if you can use "public domain images" rather than "clip art."
Hope this helps,
David Dailey
Received on Wed May 17 2006 - 19:15:15 GMT