Re: State Susceptibility to Suit for Copyright and Patent Infringement

On 98-08-04, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> The problem with this analysis (similar to Pat Sloane's) is the rule
> of the Sega and Nintendo cases -- once I have posession of a copy,
> it is fair use for me to make what would otherwise be an infringing
> copy in order to extract the underlying public domian elements. So
> I may not be able to reproduce the museum's image without their
> authorization, but I probably *can* scan it without their
> authorization to make my own image.
 

Could you expand on what the court meant by "extract the underlying public domain elements?"

It seems to me that when you scan the museum's photo, you're making a copy of their (copyrighted) photo, not a copy of the painting. "Extract...public domain elements" is a fairly meaningless concept, because you don't have access to one single thing about the original painting except what was included in the photo. You can't. for example, make a color scan from a black and white photo.

Also, what about degradation? Anyone who has a use for the museum's photo doesn't want a printout of a scan of the photo, because the quality isn't sufficient. Ditto for xeroxes. So your scan of the museum's photo isn't going to accomplish much of value.

Along a similar line, some museums allow art students to come in with easels and copy paintings. Why no infringement problems? Because a student copy of a Rembrandt painting isn't going to look like the Rembrandt painting.

Pat Sloane
<patsloane[_at_]aol.com> Received on Tue Aug 04 1998 - 17:01:45 GMT