Re: Fair Use Question?

In Message Tue, 22 Mar 1994 19:09:52 -0500, koven[_at_]umbsky.cc.umb.edu writes:
>
>I recommend looking at the SDNY case of Hearn v. Meyer, 3USPQ2d 1721
>(1987), in which painstaking reproduction of W.W. Denslow's original
>illustrations for "The Wizard of Oz" were held not copyrightable
>because the originals were public domain and the reproduction, though
>extremely skilled, added nothing artistically to the originals.

I'll have to check but I believe the reproductions involved were reproductions of public domain reproductions of the Denslow originals. In any event the case is part of a line of cases in the second circuit attempting to back away from the earlier Alfred Bell case which appeared to give too much emphasis on the now discredited "sweat of the brow" approach to originality. That is, the second circuit made it clear in Batlin and Tomy (and the district court followed suit in Hearn) that a derivative work must contain more than a trivial variation from the underlying work to be susceptible to copyright protection. It is clear that the high quality photographic reproductions of original art with which most of this discussion has been concerned would meet the standard and would thus be copyrightable. Leaving those kinds of reproductions, we are in a much fuzzier area.

Sheldon W. Halpern
Professor of Law
The Ohio State University College of Law <shalpern[_at_]magnus.acs.ohio-state.edu> Received on Tue Mar 29 1994 - 05:33:32 GMT