more on Bettman archive -- Corbis not Microsoft

It is actually Corbis rather than Microsoft that seems to have acquired Bettman. Corbis is apparently owned by Bill Gates (see note at end of this message).

At 10:14 AM 10/23/95 -0500, Mark Lemley wrote:
>
> But it seems more likely to me that Gates intends to digitize these works
> and, having done so, try to exert some control not just over the originals,
> but over the digitized versions as well. That seems more problematic from
> a copyright standpoint. Right? Or is there some claim to copyright
> residing in the "creative" work of running the art through a scanner?

John Noble writes:
>
> I would doubt that digitizing the works would give rise to a new copyright.
> There's just no creativity involved. My guess is that the pictures will
> be incorporated in compilations, such as encyclopedias, historical works,
> etc., and licensed to other software developers and publishers as they
> have been in the past.

This list discussed this a few weeks ago under the subjects "Rights in Digital Representations" and "First Electronic Rights." Dennis Karjala raised the possibility of "thin copyright" to add incentive to these sorts of digitizing projects for public domain material. Not to reraise the whole subject, but the folks at Corbis seem to have assembled quite a team of experts in both digitizing and in IP law. It strikes me as though 1) a compilation copyright could be claimed and 2) the issue of the amount of originality that goes into a scan can be argued either way.

1. Though a particular image might not be protectable, the assemblage (as distributed on CD) could well be (though, yes, the arguments about Feist can be reraised here).
2. Getting a good scan of an image is not an automatic result of pushing a button. Knowing how to scan (moire patterns, graininess, dots per inch, brightness and contrast), canonize the image (adjust the luminance curve, crop, etc.) and compress (jpeg, tiff, gif, etc. -- with some notion of how it will look once compressed) for various different sorts of images (line art, gray scale, color, etc.) can require sophisticated professional judgment probably on a par with the art of photography. Do we really mean to imply that there should be no protection on this work despite its "factual" nature?

Nevertheless, our previous discussion seemed to find no one willing to argue that a first scan of a public domain work should somehow preclude the ability of someone else to make a second scan. (Of course, someone might own and thereby restrict access to the original physical material.)

John Noble continues with the following intriguing questions:
>
> And query: if someone did post a lot of pictures in one place, in violation
> of a license agreement, and Broderbund or somebody else used them to create
> a new product, would Microsoft have a remedy? Tortious interference? Unfair
> trade practices? Conversion? If you were Broderbund's lawyer, how would you
> balance the risk of litigation cost and potential damages against the
> license fee?

Yes, I think Broderbund would be out on a limb indeed and would prefer to pay a license for use of any substantial subset of these images.

Incidentally, as a web editor, I think there is indeed market value for public domain imagery. Having a large bank of images for which my contributing artists/authors would not have to worry about using the material in whatever way they see fit (short of redistributing the original compilation for money) would be very handy. Most clip art comes with rather peculiar and constraining license agreements that would make "public domain" imagery far preferable, if indeed it were "certifiably public domain" --i.e, there is great potential value in knowing that the work is copyright clear.

BTW (since it is germane to this discussion of Microsoft and Bill Gates role in this) Sue Hartke <cshartke[_at_]corbis.com> recently wrote on another list (vra-l):

> To learn more about Corbis, our acquisition of Bettmann, or just to preview
> examples of the imagery in our archive, visit our WWW site at
> http://www.corbis.com. I would welcome any additional questions you might
> have; please send them to my e-mail address below. Thanks for reading this
> through!

David Dailey (ddailey[_at_]williams.edu) Received on Wed Oct 25 1995 - 21:34:43 GMT