Re: Public Domain?

On 5/2/98, Max Dashu <maxdashu[_at_]lanminds.com> wrote:
>
> Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > You could not prevent someone else from copying the sculpture (even
> > from your photo), but you could prevent someone else from copying your
> > photo of the sculpture.
>
> What does this mean in practical terms? I assume that copying the
> sculpture in the form of a drawing is OK, because this is commonly done
> in illustrations in scholarly works (in lieu of photos where copyright
> presumably could not be obtained). But what if a new work of art is
> created from an altered, computer-enhanced scan?

First of all, if you want advice "in practical terms," a law professor isn't the best person to ask. Our lives are devoted to analysis of the hypothetical; most of us went into teaching to escape the practical. :-) But we also never hesitate to express an opinion, so here goes...

It is a mistake to assume that copying a sculpture in the form of a drawing is permitted. If the sculpture is still under copyright, it could very well be found to be an infringement. The fact that it is "commonly done" will help in proving either implied license or fair use, but it is not alone determinative. The real key is: are you depriving the copyright owner of revenue to which he or she is entitled? That's circular, but so is much of the test for "fair use."

As for a "new work of art created from an altered, computer-enhanced scan," I really can't say. [I assume you mean a "scan" of the sculpture, but what form would the result of the scan take? 2-D? 3-D? Would it be viewed only on a computer screen, or would it be a stand-alone work?] But if the new work of art is "derived" from the original, it is likely to be a derivative work.

> I ask because as a historian I want to use historical images in a
> forthcoming book. A massive, possibly impossible task of copyright
> search looms before me, and I am looking into having drawings made of
> sculptures, paintings, etc. for images whose copyright holders I cannot
> locate, or whose fees I cannot afford. My question is motivated by the
> clash of propriety concerns versus the right of the public to have
> access to historically significant (and difficult to find) images. How
> can there be comment on and exchange of ideas about such images without
> being able to reproduce them?

I agree with you, and I think the scope of "fair use" has been unreasonably restricted by courts taking an overly narrow view of what is "fair." But that's what we are left with by Congress' refusal to give more specific guidelines and leaving everything to case-by-case determination. [As a practical matter, there may be very little chance that anyone would care. But heaven knows it is hard to take the chance that someone might care.]

If you are using only "historical" images, remember that anything first published in the U.S. before 1923 is now out of copyright, and can be freely copied. [That's the advantage of fixed duration for copyright. Under the 1976 Act, for works fixed on or after 1/1/1978, we're stuck with life plus 50.)

> > ... it is unclear whether a photograph of a two-dimensional work is
> > entitled to copyright...
>
> Does this mean, for example, that a photo of a medieval manuscript may
> be reproduced in a historical work?

In my opinion, yes. But others on the list (including myself, wearing my devil's advocate hat) have argued that even a photograph of a two-dimensional work contains enough originality to be a copyrightable variation of the original work. If the court agrees, then you would have to get permission from whoever took the photo. [If you take the photo yourself, no problem. But to do that, as a practical matter you will need the cooperation of the owner of the medieval manuscript.]

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Thu May 07 1998 - 00:53:03 GMT