Images of Public Domain Images

This is not an easy issue. The answer is not always as Mr. Hyland indicates. Compare, for example, the result in Hearn v. Meyer, 664 F. Supp. 832 (S.D.N.Y. 1987) to the holdings in Alfred Bell & Co., Ltd. v. Catalda Fine Arts, Inc., 74 F.Supp 973 (S.D.N.Y. 1947) and Alva Studios, Inc. v. Winninger, 177 F. Supp. 265 (S.D.N.Y. 1959), two cases distinguished in the Hearn opinion. In Hearn the court held that the copying of reproductions of public domain works did not constitute copyright infringement finding that the reproduction, although in a different medium, lack the necessary originality to be copyrightable subject matter.

In Alfred Bell, however, the court found that mezzotint engravings of public domain works were copyrightable. The District Court stated: "The work of the engraver upon the plate requires the individual conception, judgment and execution by the engraver on the depth and shape of the depressions on the plate . . . . What is original with the engraver is the handling of the painting in another medium to bring out the engraver's conception of the total effect of the not master . . . . It is only this treatment in another medium which is original, but it is a distinguishable effect which can itself be copied by photography."

It appears that the key in these cases is the level of creativity involved in creating the reproduction of the public domain work. If the reproduction contains sufficient originality in itself to sustain a copyright, then it's protectable. Photographic reproductions created for educational purposes to be as close to the originals as possible, it would seem, would be much less likely to enjoy protection than photographic "interpretations" of the public domain works of others.

What of a reproduction of a public domain text that also contains illustrations? Might the illustrations be protected but the text not? I think that so long as the object of the reproduction is to be faithful to the original, and it is photographically reproduced, it is very likely that the reproduction will not be protectable.

Bernard Gerdelman
<attorney[_at_]i1.net> Received on Mon Mar 09 1998 - 16:54:35 GMT