Re: Images of Public Domain Images

On Mon, 09 Mar 1998, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> In my opinion, the answer in both instances is the same: the modern
> work that consists solely of a reproduction (digital or otherwise) of a
> work in the public domain cannot be copyrighted. The reason is that an
> exact reproduction of a public domain work requires only skill, and not
> originality, as that term has been defined in copyright law. Originality
> consists of independent creation and a minimum degree of creativity. In
> my opinion, there is not the slightest trace of creativity in making a
> microfilm of a public domain document, or in making a photograph
> (digital or otherwise) of a public domain image. It may take some time
> and money, but under Feist, copyright protects originality, not effort.
>
> If the modern copy of a public domain work is not copyrightable,
> then it may be freely copied. Feist makes it clear that one need not
> return to the original work (or source) in order to copy the
> uncopyrightable copy. I hope that means we've seen the last of the
> oft-misquoted statement from Bleistein that "Others are free to copy the
> original. They are not free to copy the copy." Paraphrasing Justice
> Holmes in modern copyright terminology, the quote should read: "They are
> not free to copy the copyrightable expression in the copy."
>
> [Caveat: A new work that reprints several public domain works in a
> single volume may be copyrightable as a compilation, that is, as an
> original selection, coordination or arrangement of preexisting material.
> In that case, however, the author has a copyright ONLY in his/her
> original selection, coordination or arrangment; the copyright would not
> prevent others from copying individual public domain works from the
> reprint.]
>
> But there are economic incentives for publishers to continue to try
> to collect royalties on reprints of such public domain material, so
> publishers will undoutedly continue to claim copyright in such reprints
> and demand payment for copying them. [For example, I am confident that
> Bill Gates and/or Microsoft will claim copyright in digital versions of
> the images of the Bettman Archive, which he/it now owns.] Currently,
> there is very little downside risk for them to try to do so, and most
> users are too uninformed or too poor to fight back. For those who are
> inclined to fight back, I recommend an excellent law review article by
> Prof. Paul Heald of the University of Georgia, "Payment Demand for
> Spurious Copyrights: Four Causes of Action," 1 J. Intell. Prop. L.
> 259 (1994).

I work for a printer that was asked by a customer to produce eleven T-shirts for his corporate project. Each of these t-shirts would have used an image from a poster designed for the Federal Government during the WWII era, which has been _reprinted recently_ on a postcard.

I was concerned that if we were to use a reprint of this image (from a postcard or page from a book) as our original, then we could be liable for copyright infringement because of any formatting, enhancements, color seperation, or other design labor that may have been implemented in production of the reprint (in said postcard or book).

According to Holly Reed <holly.reed[_at_]arch2.nara.gov> at the National Archives & Records Administration <http://www.nara.gov/>, "the image is public domain, as received from one of the National Archives private vendors. As such there are no restrictions. As far as copying from any other source, you are correct in assuming they may have their reproduction copyrighted."

I imagine that if we (or say, the Smithsonian Museum of American History) had an actual _original printing_ of the document, the image of that actual physical item would also be considered public domain, also.

Now, if I understand you correctly -- based on your interpretation of Feist, although someone may claim to own copyright in microfilm or photography, their claim may not hold up in a court of law?

Would a printed reproduction be considered to deserve any more copyright protection? Surely there were 'sweat of the brow' design labors involved in making the reproduction; but you have made the argument that -- even though it may take some time and money -- under Feist, copyright protects originality, not effort.

I would have to agree (personally, although I am not an attorney) that as long as the finished product is designed to appear as an identical copy of the image in question (referred to as the 'original' in the printing trade), then any 'sweat of the brow' labors implemented in the process are not sufficient grounds to warrant a claim of copyright. i.e.: a reproduction, by definition, would not contain the requisite amount of originality for copyright protection.

To quote from FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 89-1909 (FEIST v. RURAL, 499 U.S. 340 (1991)) <http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=499&invol=340>

         ``In _The Trade-Mark Cases_, the Court addressed the constitutional scope of "writings." For a particular work to be classified "under the head of writings of authors," the Court determined, "originality is required." 100 U.S. at 94. The Court explained that originality requires independent creation plus a modicum of creativity: "[W]hile the word _writings_ may be liberally construed, as it has been, to include original designs for engraving, prints, &c., it is only such as are _original_, and are founded in the creative powers of the mind. The writings which are to be protected are the _fruits of intellectual labor_, embodied in the form of books, prints, engravings, and the like." Ibid. (emphasis in original).''

--


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Shanta Stevens                                                                  
Course Resource Coordinator
Ginny's Printing and Copying
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