On 8/4/98, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> 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?"
Probably not, since as Jessica Litman points out, no one really quite knows what the public domain *is.* :)
But in the particular cases, software was decompiled so that uncopyrighted aspects could be copied -- not itself an infringment, but decompliling requires making a copy. The holding was that the copy made in the course of getting at the unprotectable parts was fair use.
> 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.
Well, that's not quite right. You are making a copy of their copyrighted photo, which includes the unprotected painting as subject matter. You can take whatever was in the painting, but not original expression from the photo. For most photos of that sort, the originality will be quite thin, since the idea is to accurately portray Rapheal's painting rather than for the photographer to get creative.
> "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.
This is true, but I think you have it backwards -- the photo doesn't contain much original, but rather depicts the public domain painting. So there will be very little protectable expression in the 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.
Oh ye of little faith! You should spend some time watching what a skilled Photoshop artist can do. It's truly astonishing.
> 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.
Well, no -- that may be why the museum doesn't object. That's not why there are no infringement problems. There are no infringment problems because any expression taken from the Rembrandt is in the public domain, and anything that doesn't look like the Rembrandt is original with the student.
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