Re: Digitized Photographs in the PD

Brian David Negin <negin[_at_]cbs.gov.il> wrote:
>
> Perhaps someone on the list can help me with the following question.
>
> Does the digitizer of a photograph in the public domain have a
> copyright in the digitized image, where the image was created by a
> purely technical scanning of the original?

In my opinion the answer to Mr. Negin's question is "No."

This is because, given the facts he presents, the fundamental requirement of "originality" for copyrightability would be lacking in the digitized image.

     One requirement for "originality" of a work is that a human being, in preparing the work, make at least one choice that affects some expressive element in the work, as fixed in a tangible medium of expression. There is no originality if a work is made by a machine with the only human intervention being turning the machine on, selecting a pre-existing work to feed to the machine, feeding the work to the machine for translation by the machine itself into a different form, turning the machine off at a time determined by the mechanics of the machine, and then removing the new work from the machine. These steps do not involve any choice by a human being that affects some expressive element in the new work.

     There might be "originality" in the digitized image if a human can and does control the scanner in a way that affects an expressive element in the digitized image. This could occur if a human controls the scanner to add to the digitized image color or shading, for example, that the human, rather than merely the machine, has a role in determining.

     Such human control, while necessary for "originality," is not sufficient. It is conceivable that the coloring or shading, or other effect on an expressive element, that is due at least in part to human control would be too trivial to afford "originality" to the digitized image. Without "originality" the image would not be copyrightable.

William J. Scanlon, Ph.D.

THE SCANLON LAW OFFICE
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[NOTICE: The information provided here by The Scanlon Law Office or any of its attorneys is provided as a public service. It is not legal advice and may not be relied on as such. It does not establish an attorney-client relationship between The Scanlon Law Office or any of its attorneys and any other party.] Received on Wed Apr 22 1998 - 04:42:02 GMT