Re: Copyright? extracting the public domain parts?

I apologize for copying the long message below for short responses, but i could not see any fair way to shorten it.

The real problem with all of Mr. Dailey's examples is that they begin with making a copy to be manipulated, which is, according to current theory, the making of an infringing copy itself. the fact that the infringer then destroys evidence of his infringement may exacerbate, not excuse, his original infringement.

However, I would like to add another problem to his set: Apparently Robert Motherwell once gave Jasper Johns a pencil drawing. Johns then erased all of Motherwell's marks and hung the result with the title "Erased Motherwell". Is the Johns's work a derivative of the Motherwell?

  --buford

+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+ Buford C. Terrell
South Texas College of Law
1303 San Jacinto, Houston, TX 77002
(713)646-1857 terrell[_at_]sam.neosoft.com +-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+-+

>I wrote:
>>>c) If I write a program which "scavenges" the public domain parts of
>>>an otherwise proprietary publication and reassembles them in some
>>>manner which obliterates the contribution of the copyright holder, can
>>>I then publish my results? If so, the implications for photography
>>>would be fairly large, it seems, since many of the objects which are
>>>photographed are "public" objects.
>
>Buford Terrell (terrell[_at_]sam.neosoft.com) replied:
>>If I make a photograph of the Statue of Liberty, my image is an
>>expression unconnected to the thing itself. The image is my creation
>>and i have copyright in it separate from any property rights in the
>>thing portrayed. No part of it is "public domain" to be taken by the
>>user.
>>
>>However, if my subject itself is subject to copyright, my making a
>>a photograph of it would be copying that expression and could amount
>>to infringement.
>>
>>Both Borland and Mead deal with the issue of what is copyrightable (?)
>>subject matter, which is a totally different question.
>
>This makes sense to me. I guess, though, it fragments my original
>question into two strands, at least one of which may be consistent
>with Professor Terrell's observations:
>
>1. Apparently, West v. Mead deals with whether or not the
>embellishments that West has added to public domain material are
>copyrightable. That is, Westlaw conveys a sequence of text to its
>subscribers. Parts are embellishments added by West, and assertably
>owned by West. Parts are (at least, arguably) public domain text.
>If a program scavenges the text and removes the public parts and
>reassembles them, then, we have removed West's contributions. Would
>the use of this program, and subsequent redistribution of its output,
>be considered acceptable? Or can a publisher prohibit such (by virtue
>of the labor of having assembled the material and having made it
>electronic)? I'm unclear how far the ruling in Mead actually went,
>since it seems that the legal texts that West starts with are,
>themselves, not subject to copyright.
>
>2. The second strand pertains to derivative works, specifically
>scanning of photos. Let me give a real-life example. In 1980 a
>colleague of mine was putting together a history of psychology
>textbook. He was interested in using some rare photos of eminent
>psychologists, the only sources of which, in some instances, were from
>out-of-print books (though the images were still less than 70 years
>old). He made a valiant effort to obtain rights, but in some cases the
>publishing houses no longer existed. Tracking down the estates proved
>to be non-trivial. He wondered if I could write a piece of software
>which would take the two dimensional faces, three-dimensionalize them
>(using some frame-theoretic notions that would differentiate between
>facial shadow and facial pigment), and then allow 3-D rotation, so
>that, for example, a front view of a face could be rendered into a
>half-profile view. That is, we would be reconstructing the
>photographic moment of 60 years ago, restaging it, changing the
>lighting and camera angle, and "snapping" a new shot. Would such be
>okay? Professor Terrell seems to be saying no.
>
>The rule-of-thumb I've usually thought should be applied in such cases
>is that
>
>A. if, from a derivative work, we can reconstruct the original
>copyrighted work (within some objective degree of similarity, through
>some omnibus algorithm involving canonical resizing, rotation, palette
>adjustments, etc.), then the derivative work has infringed.
>
>Another more stringent criterion would be that
>
>B. if the original can be uniquely identified from the derivative work
>(that is, that fact the derivative stems from the original is clear),
>then the derivative work has infringed on the original.
>
>More stringently still, one could argue that
>
>C. no one has any business digitizing the original in the first place
>and that derivation (in the case of visual art) should be limited to
>pencil and paper only.
>
>I'm aware of the case of the sculptor who depicted the puppy dogs on
>the park bench and was sued (successfully) by the photographer whose
>greeting card served as inspiration. This would tend to suggest that
>derivation in any form is pretty much a no-no, but this particular
>case seems to grate against my sensibilities. I'm also pretty sure
>that statutory law doesn't really handle these issues very
>precisely. Are there any good URL's for case law on derivative
>artwork? Any commonly accepted guidelines?
>
>3. (This is really a separate issue, but I might as well pose it while
>I'm at it.) Suppose I find a nice image at wuarchive.wustl.edu, or
>some other Internet site. I realize the mere fact that it is there on
>the Internet does not mean that the posting site has permission, nor
>that it is in the public domain. The posting may be illegal, but I can
>assume that the site adminstrators are responsible parties. And
>suppose I, consistent with the permissions implicitly made by the
>posting site (by making the file world readable, they are undeniably
>permitting me to do this), copy the image into RAM, and modify it, in
>such a way that criterion A. above does not hold: the original is not
>reconstructable from the derivative (though perhaps it is identifiable,
>as by criterion B). Then, further, I put the derived image on my home
>page with world read permissions. If I go so far as to reference the
>source (e.g., this image was modified from the file "monroe18.gif", a
>239k 8-bit Compuserve GIF file, downloaded on 12-12-1994 from
>http://omnibus.images.unistate.edu/images/famous/monroe18.gif) then
>would I not be insulating myself from any liability for infringement,
>since any claimant to the copyright of the image is directed by me to
>the persons responsible for the Internet site where I found it. In
>other words, if I make the source of my potential infringement
>explicitly known, then is not the copyright holder's complaint with
>the administrators of the other site, rather than with me?
>
>I guess I'm trying here to find a way to reconcile what have become
>common practices on the Internet (such as copying from publicly
>accessible gif archives) with the legitimate rights of the (usually
>unknown) copyright holder.
>
>David Dailey
>ddailey[_at_]william.edu
Received on Tue Mar 21 1995 - 06:00:28 GMT