Re: Fair Use Question?

>My question to Kathy and others is how does making a reproduction from
>an image of a work obviously in the public domain, from a plate in a
>book published before 1918, differ from making one of the same artwork
>in a book published yesterday (especially if the image appearing in both
>is similar)? After the reproduction is made, what's the difference?
>It's still a reproduction of a work in the public domain. What has
>today's photographer contributed that warrants the protection of a
>copyright?

Although later opinions have attenuated it somewhat, there remains a solidly established principle to the effect that a reproduction of a public domain work in another medium may, depending upon the circumstances, involve more than merely a "trivial variation" and itself be copyrightable. Thus, the decisions made and care taken in making a good photographic reproduction of a work of fine art could qualify the photograph itself and therefore, while anyone would be free to make his or her own copy of the original work, no one may copy that photograph (i.e., may not copy the copy). Therefore, the early photograph is in the public domain and may be copied; the later one, probably copyrightable, may not be copied.

Sheldon W. Halpern
Professor of Law
The Ohio State University College of Law

<shalpern[_at_]magnus.acs.ohio-state.edu> Received on Fri Mar 11 1994 - 21:04:22 GMT