On 07/20/98, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
>
> Let's say that person C comes and sees these four pieces (A, B, C,
> and D). After studying the pieces, he declares that persons A and B
> are dead wrong and the order must be B, A, D, and C.
>
> Five years later, person D comes and sees the same pieces. He thinks
> that persons A, B, and C are really off the mark. He decides that the
> real order is D, C, A, and B.
>
> Can any of these three different orders (BCAD, BADC, and DCAB) be
> copyrighted? I think so because the original work does not exist
> and there is no way to find out which of the orders is the "right"
> one.
It is becoming a bit difficult in this hypo to separate the persons from the fragments, since all are lettered -- but the general principle is that there must be original selection and arrangement in the order for it to be the subject matter of copyright. If the number of permissible arrangements is quite small, then the selection among them will likely be too constrained to entail originality.
However, if you are stipulating that there is no indication of the "right" order -- which is to say, no constraints on the arrangement selected -- the the combinatorial number of arrangements for the four pieces might be sufficiently large number of possibilities that selecting among them would require originality. Your fact pattern, in which three different scholars reasonably arrive at different conclusions, tends to support this outcome.
Of course, for Shakespeare and other texts, the degrees of combinatorial freedom are not unconstrained.
> To continue one more time, twenty years later, person E discovers
> an old book in a coffin that is buried about 5 miles away from the
> old cave. The old book shows that person C's order is the right one.
> How will it affect the copyright status of persons A's, B's, and C's
> orders?
I don't think it does. The A and B arrangements may still be original, they are just wrong. The C arrangement is the product of original selection if created before the D discovery -- if it were created after the D discovery, it would not be the product of original selection, but would rather have been dictated by the D discovery.
> Although I based my fictional scenario on the Dead Sea Scrolls (as
> mentioned by Dan L. Burk)
In the case of the Qumran fragments, the number of possible combinations is potentially quite large, but not unconstrained -- the arrangement must make some type of sense, the scribal hands must match, the PCR signatures of the animal DNA (in the case of the vellum fragments) must match, and so on. In the case of known scriptural works, the selection in most cases is also guided by existing versions of the works.
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