Questions about copyright of pre-1923 materials

[Sampiro]

For the purposes of this question, suppose that while stopping at a yard sale in Springfield, Illinois, I come across I, Abe, a heretofore unknown and unpublished autobiography of Abraham Lincoln. Further suppose that in the same box are several unknown Matthew Brady photographs of Lincoln, including one of him giving the peace sign while Mrs. Tom Thumb is on his shoulders. I pay my $2, have the autobio authenticated, publish it and publish scans of the pictures on the web.

Since both of these date before 1865 and thus well before the magic date of 1/1/1923, if I publish the Lincoln autobiography- obviously any forwards and annotations that are added by editors or historians are covered by copyright, but is the text itself? In other words, could another person buy a copy and reproduce all of the parts written by Abe and sell it in another edition, and if not, why not?

As for the picture, if a person makes a copy of the scanned images and uses them in a book, would that be a violation of copyright? Brady’s copyright expired decades ago but the scan/web publishing is a new means of distribution, so would it be protected to the owner of the web page and or the owner of the actual photograph?

Thanks for any info.

[mhendo]

I don’t really know about the first part of the question, and i’m having a bit of trouble making sense of the Title 17 rules on the subject.

§ 302 says that copyright exists for the life of the author, plus 70 years after the death of the author, but that section is specifically devoted to works produced after 1978.

§ 303 deals specifically with works created before 1978, but not published or copyrighted before 1978, and says:

Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.

But it’s not clear to me who actually would hold the copyright in your case—you, or the original author (or his heirs).

Going back to §302, there are also a couple of paragraphs dealing with the death of the author, one of which says:

After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefits of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title.

Again, this subsection applies specifically to works created after 1978, so i’m not sure how exactly it applies to your hypothetical. That is, it’s not clear to me whether the controlling issue here is:

a) the year that Abe Lincoln died

b) the year that the work is first published

c) some combination of these that i don’t understand.

I’ve always been under the impression that ANY work created before 1923 is now in the public domain. The only thing that gives me pause now, though, is the section about works created but not published before 1978.

The final part of your question is considerably easier. As far as i know, the controlling legal case in situations like this (at least until it is affirmed or struck down by a higher court) is BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).

In this case, the Bridgeman Art Library had made a bunch of high quality slide copies of classic public domain artworks. Corel used those copies in an instruction CD-ROM (or something) without asking permission or paying any royalties. Bridgeman sued, arguing that it held copyright in the newly scanned images, and that Corel had breached that copyright.

The court, however, found in favor of Corel, arguing that simply making a direct copy of a two-dimensional artwork does not entitle the copier to enjoy copyright in the new creation. The copy, according to the court, does not pass the test of originality required to claim copyright. That is, while the copying undoubtedly involved time, effort, and some technical proficiency, it had not of the “creative spark” that copyright laws were intended to protect and encourage. This paragraph from the ruling is probably the most telling:

In this case, plaintiff by its own admission has labored to create “slavish copies” of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality – indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.

The ruling also stated that this finding would also apply if the case were brought in the United Kingdom, although the Wikipedia article on the case suggests that, if the case were heard in Britain, there are aspects of British copyright law that could well lead to a victory for Bridgeman.

Anyway, unless i’ve missed a more recent decision or a change in Title 17, i believe that Bridgeman v. Corel still holds, and that “slavish copying” of two-dimensional artworks does not entitle you to claim copyright.Note that while this case might be the law of the land, it doesn’t have “mandatory legal authority” (Wiki) because it’s a district court ruling. It would have to be cited by an appellate court in order to have that authority. But, if i understand it correctly, many intellectual property lawyers believe that the main reason Bridgeman v. Corel hasn’t yet been challenged is that most people believe it would be upheld in the higher court anyway.

So, while you might be the sole possessor of those newly-unearthed Brady photos, the only way to prevent other people copying and publishing them is to keep them to yourself. Once they’re in a book, or on your website, they’re fair game.

Note, though, that even if copyright in the individual images has expired, i believe you would be able to assert copyright over a collection of those images. That is, if you edited and arranged them in a book or on a website, i’m pretty sure you would hold copyright over the collection as a whole. People could not just take your edition and republish it as it was. I’m not sure exactly how much work has to go into such an editing or collecting task in order to qualify for this; hopefully someone who knows more about it will be able to help.

[Una_Persson]

@Sampiro

As for the picture, if a person makes a copy of the scanned images and uses them in a book, would that be a violation of copyright? Brady’s copyright expired decades ago but the scan/web publishing is a new means of distribution, so would it be protected to the owner of the web page and or the owner of the actual photograph?

Thanks for any info.

Dude, I’ve written and ranted about this subject for years on this message board. Search on “bridgeman and corel”. Basically, a slavish reproduction of a public domain image is not copyrightable because it adds no creative content, despite what irate A/V and photography buffs assert. And remember - no matter how many cutesy warnings and notices people put on their websites of public domain works saying “all scans copyright me, me, me!”, they’re either ignorant or outright lying.

I see on review that mhendo has already posted. No, Bridgeman has never been overturned, and if it goes to the USSC I feel, based on my study of this issue, it will certainly be upheld.

As far as how much work constitutes a “compilation”, that is something that is very difficult, and AFAIK has not really been tested. I know of no Federal cases along those lines involving a compilation of 100% public domain works.

[mhendo]

@Una Persson

Dude, I’ve written and ranted about this subject for years on this message board. Search on “bridgeman and corel”. Basically, a slavish reproduction of a public domain image is not copyrightable because it adds no creative content, despite what irate A/V and photography buffs assert. And remember - no matter how many cutesy warnings and notices people put on their websites of public domain works saying “all scans copyright me, me, me!”, they’re either ignorant or outright lying.

Not only that, but you could actually make a case that they, themselves, are violating Title 17 by making the claim.

§ 506 ©, under the general heading “Criminal Offenses,” says:

Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

Of course, you might have some difficulty proving the fraudulent intent. Most people are simply ignorant of what the law says.

It’s somewhat less excusable when it’s a company that makes money selling access to online copies. They do, of course, have a right to charge for gaining access to their website, but they’re still not meant to assert copyright over public domain works.

I’ve been doing some paid work gathering images for a book that is about to be published by an academic press. One of the images is the cover of an issue of Harper’s Weekly from 1901. The image is available in a good quality file on the paid version of the HarpWeek website, but when you download it there is a watermark across the bottom of the image that says:

© 2000 HarpWeek

I’m pretty sure they can’t copyright that image, even if they can charge for access to it on their website.

[Una_Persson]

@mhendo

Not only that, but you could actually make a case that they, themselves, are violating Title 17 by making the claim.

§ 506 (c), under the general heading “Criminal Offenses,” says:Of course, you might have some difficulty proving the fraudulent intent. Most people are simply ignorant of what the law says.

Yeah, I’ve been threatened (because of my online art gallery of 22,000 old (mostly) public domain works) several times over the past few years by people, and when I throw that back at them they either disappear, or make vague legal threats.

It’s somewhat less excusable when it’s a company that makes money selling access to online copies. They do, of course, have a right to charge for gaining access to their website, but they’re still not meant to assert copyright over public domain works.

Museum websites are the absolute worst ones IME. When I try to educate them about Bridgeman they almost react with “we don’t care, we say what the law is, and you’re a copyright thief! That 500 year-old artwork is under our copyright!”

when you download it there is a watermark across the bottom of the image that says:

(C) 2000 HarpWeek

I’m pretty sure they can’t copyright that image, even if they can charge for access to it on their website.

I think that’s terrible - ignorant or greedy assfucks do that all the time. Some of the most beautiful scans I’ve ever seen I can’t use because someone put “Copyright T-Dog” or something.

[BJMoose]

Now there is an interesting question: Could a public domain art work with a copyright notice added to it be considered a copyrightable work? After all, they did add something new and unique to the old work - a copyright notice! I suppose the answer would be that there’s nothing particularly original or creative about a copyright notice per se.

[SCSimmons]

@BJMoose

Now there is an interesting question: Could a public domain art work with a copyright notice added to it be considered a copyrightable work? After all, they did add something new and unique to the old work - a copyright notice! I suppose the answer would be that there’s nothing particularly original or creative about a copyright notice per se.

Maybe if it was a very artistic copyright notice. Hand-drawn calligraphy with illumination, or something.

[Mycroft_H]

BJMoose, the changes have to be substantial for the new work to be allowed to be copyrighted. (As for what “substantial” is, attorneys and courts can get involved.) I would believe (but do not know for certain) that if someone drew a reproduction of the Mona Lisa, obviously out of copyright, but substituted Hillary Clinton, that would be a substantial change and could be copyrighted.

To add to what others have mentioned about the OP, in the US unpublished works are treated a little differently, but there would be no effect in this case. Unpublished works from a known contributor remain in copyright for 70 years following the creator’s death. And, something that goes into the public domain cannot be brought back into copyright. So, yes, someone could buy their own copy and legally publish it as a different edition. I think that they could even retype the text from your own edition and legally print it without running afoul of US copyright law.

A great summary table of copyright rules, referenced in previous threads, is here.

An area I am uncertain about is how the process of setting up the book is covered. If you publish the new autobiography, could someone just photocopy the pages and sell it as “edited by” them after removing any original material you added? This kind of relates to Una’s comment. If someone photographs an old painting or scans an old print, can they prevent someone from using the product of their photography or scanning? The image is not protected, but can their process be protected? I don’t know.

[Gfactor]

@mhendo

As far as i know, the controlling legal case in situations like this (at least until it is affirmed or struck down by a higher court) is BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).

It’s a bit of a stretch to call *Bridgeman * a controlling case. District Court opinions, at best, bind only the issuing court under the doctrine of stare decisis. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/DC/965211a.html
news.findlaw.com/hdocs/docs/religion/mcginhstn82703ord.pdf

It is probably the *leading * opinion on the issue. But it has only been cited for the “slavish copying” proposition a couple of times, also by the Southern District of New York; it was also cited, in a more general sense by the Eastern District of New York in an unpublished opinion *Funrise Can. v. Zauder Bros., * 1999 U.S. Dist. LEXIS 22431 (E.D.N.Y. July 2, 1999) ("Where copyright protection is sought for a work that constitutes a copy, the copier must demonstrate ‘some identifiable original contribution.’).

The case generated a lot of scholarly discussion, but most of it deals with its resolution of the choice of law issue.

It’s also notable that the plaintiff’s lawyer did such a poor job on the case that the Court took notice of it, and a subsequent court refused to certify a class action involving the same lawyer based on is inadequate representation in Bridgeman:

"The attorney of record for the plaintiffs and the proposed class in this case is Stephen A. Weingrad of the firm of Weingrad & Weingrad, L.L.P. Mr. Weingrad is not a stranger to this Court. He represented the plaintiffs in another copyright case recently, Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999). His professional performance in that action was unsatisfactory. Indeed, in passing on his motion to for reargument and reconsideration after the Court granted summary judgment dismissing his client's claims, the Court wrote as follows:


"'At the outset, it is worth noting that the post-judgment flurry was occasioned chiefly by the fact that the plaintiff [represented by Mr. Weingrad] failed competently to address most of the issues raised by this interesting case prior to the entry of final judgment. In particular, while plaintiff urged the application of U.K. law, it made no serious effort to address the choice of law issue and no effort at all (apart from citing the British copyright act) to bring pertinent U.K. authority   to the Court's attention before plaintiff lost the case. Indeed, it did not even cite Graves   ' Case, the supposedly controlling authority that the Court is said to have overlooked.' Id. at 192.

"Regrettably, Mr. Weingrad's performance in Bridgeman was not an isolated occurrence. In Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110 (2d Cir. 1999), the Second Circuit rejected an appeal, taken by Mr. Weingrad from a district court judgment of dismissal, 'on the ground that the main Brief filed by appellant [i.e., Mr. Weingrad] articulates no grounds for reversal of the judgment, and we decline to entertain arguments made for the first time in the Reply Brief.' Id. at 111. Moreover, the Circuit ordered Mr. Weingrad to pay the appellee's attorney's fees as a sanction pursuant to Fed. R. App. P. 38:

"'We do hold that appellee should recover under Rule 38 its reasonable attorney's fees in connection with this appeal. By failing in its main Brief to state reasoned arguments based on cited authority setting out grounds for reversal, appellant's counsel forced appellee to anticipate, research, and argue the issues in the case without knowing what issues appellant  intended to raise. [citation omitted] An award of attorney's fees is thus appropriate as a sanction. Because the frivolous nature of the Brief is due to counsel, he should bear sole liability for these fees.' Id. at 112-13.

"Given both this Court's experience with Mr. Weingrad in Bridgeman and the Court of Appeals' determinations in Ernst Haas Studio, this Court quite confidently holds that no class represented by Mr. Weingrad meets Rule 23(a)'s requirement of adequate representation. 

It is plaintiffs' burden to establish that the adequacy of representation requirement is satisfied. Mr. Simmon's cv shows that he has had substantial experience in aviation disaster, products liability and medical malpractice cases. There is no evidence that he has had any class action or copyright experience. Indeed, given that Mr. Weingrad's letterhead shows that Mr. Simmon is the junior partner in a three partner firm headed by Mr. Weingrad, it seems quite likely that he would be taking his lead from Mr. Weingrad.

"It is exceptionally unpleasant to speak so critically of anyone, let alone a member of the Bar. The Court sought to avoid the need for doing so by making its views known to Mr. Weingrad informally during a status conference. Mr. Weingrad nevertheless made this motion, which gave the Court no choice but to state its view on the record.

"The motion for class certification is denied in all respects."

Bad lawyering and *stare decisis * issues aside, the decision seems correct.

[mhendo]

@Gfactor

It’s a bit of a stretch to call *Bridgeman * a controlling case. District Court opinions, at best, bind only the issuing court under the doctrine of stare decisis.

Yeah, my bad for using the term “controlling.”

Although i did, later in the post, point out that Bridgeman, as a District Court decision, does not have “mandatory legal authority.”

Thanks for the info on Weingrad. If i ever need a civil lawyer in New York, i’ll keep him on my list of people NOT to call.

By the way, if anyone is interested in a creative attempt to circumvent the Bridgeman ruling by a website that posts public domain images, you should check out the site of the Central Pacific Railroad Photographic History Museum, especially their absolutely massive User Agreement. The agreement has a section titled “Originality,” in which they make a tortuous attempt to claim copyright on the photos they reproduce on the site. Some of the language in this section is clearly aimed straight at the Bridgeman ruling:

ORIGINALITY: You acknowledge, agree, and stipulate that image restoration and enhancement demonstrated on each of the images shown on this website, constitutes originality, is a substantial variation and adaptation that is not an inevitable result of the digital medium of reproduction, and does not consist merely of making an accurate, faithful, slavish, or mechanical reproduction of a degraded historic photograph, map, or document with absolute fidelity, but – to the contrary – such creative artistry consists of, but is not limited to, manual artistic personal imprint, in each case creating a better new improved version recast, transformed, adapted, and distinguishable from the digitally scanned or digitally photographed image from which it was derived (which is just the staring point, not the ending point of the restoration and enhancement that typically alters every one of the thousands or millions of numbers that represent each digital image), requiring individual conception, judgment, numerous creative decisions, and execution and that the originality, personal influence, and contribution consists of, but is not limited to, interpreting each image and deciding on numerous expressive modifications to multiple visual elements (involving a large number of difficult and time consuming creative judgments of personal expression requiring true artistic skill and which are a product of our intellectual invention) subjectively deciding the artistic merit of how best to independently alter the image to create additional added portions of the digital visual image that were missing or obscured in the scanned image, change the apparent lighting and shading, replace removed blemishes, and alter and transform the aesthetic appearance of the image intended to make each clearer, sharper, more perfect, and more visually pleasing. Something of substance has been added making the image so modified to some extent a new work and providing a basis for asserting copyright for each such image.

Bolding mine.

Then, right underneath, there’s a warning that says:

Please don’t shoplift the pictures!

[Make no mistake—these original artistic digital images weren’t created in the 19th century.]

[mlees]

The scenario laid out by the OP is interesting to me.

Could the decendants of Abraham Lincoln make the claim (and have it stick) that the auto-biography and photos are the rightful property of the Lincoln family (presumadely stolen from them over 130 years ago), demand the return of the stuff, and deny Sampiro permission to publish the stuff?

[joechip236]

@Una Persson

Museum websites are the absolute worst ones IME. When I try to educate them about Bridgeman they almost react with "we don’t care, we say what the law is, and you’re a copyright thief! That 500 year-old artwork is under our copyright.

Some libraries with rare books collections will do the same thing; they’ll tell you you cannot copy a public-domain book or manuscript that they own, or let you copy it with the proviso that it is for “research only.” This is utter nonsense, of course. You’d think they’d understand the distinction between owning the physical item and owning the intellectual content, but they don’t.

[Una_Persson]

@mhendo

By the way, if anyone is interested in a creative attempt to circumvent the Bridgeman ruling by a website that posts public domain images, you should check out the site of the Central Pacific Railroad Photographic History Museum, especially their absolutely massive User Agreement. The agreement has a section titled “Originality,” in which they make a tortuous attempt to claim copyright on the photos they reproduce on the site. Some of the language in this section is clearly aimed straight at the Bridgeman ruling:

Holy crap, what weasels. What the fuck is people’s problems? How did we get to this “mine, mine, mine, I’ll sue you if you try to take it!!!11111one” state of society?

At some point people have to realize that creative works, after enough time has passed, should exist to better and add richness to society. Not to be locked away by greedy scum forever and ever.

If I had time and money, I’d copy the public domain works of the CPR and put them on a server, and dare them to take me to court.

joechip236, students of illuminated manuscripts and tapestries from the Middle Ages and Renaissance often run into the same thing, with belligerent librarians steadfastly saying that because they own the book, they also own the copyright, and that even a 1000 year-old tapestry can’t be photographed without their permission due to “copyright.” :rolleyes:

[Una_Persson]

Bwahahahaha! Holy crap, check out the “content licensing permissions” on this page:

User Agreement, Central Pacific Railroad Photographic History Museum

I’ve seen IP language for $1 billion projects that didn’t have half that text. Who the hell do these people think they are?

I love this part:

@Clueless Weasels

By submitting your request for permission or permissions inquiry, you are obligating yourself and your organization(s), if any, to license, immediately pay for, and to actually make use of the image(s) or other content requested in the manner as set forth in your application, should permission be granted. If you don’t want to buy a license, don’t e-mail us about permissions — it’s that simple!

:rolleyes: The mere act of e-mailing an inquiry about permissions is a contract to purchase? Um, yeah, I’m sure some lawyer can make a tortuous case where that might happen, but I somehow doubt it would be upheld.

BUT WAIT - it gets better!

Abandoned application fee: There is no application fee, but you will be charged a one hundred U.S. dollar non-refundable abandoned application fee per e-mail for EACH AND EVERY E-MAILed “Request for License to Reproduce Still Images,” permissions inquiry, follow-up, or other permissions related e-mail that we receive from you that fails to ultimately result in your licensing at least one image or other requested content, including but not limited to e-mails related to image selection, questions, billing, and collection of fees, except that no abandoned application fee will apply if you submit a complete application in your first e-mail but none of the images that you request are available for licensing.

If you mail them to simply request about permissions, they’ll charge you $100 if you don’t buy something? GFactor, can you see that as being anything but laughed out of court?

[Una_Persson]

OK, on further review, I’m questioning whether or not that page is a parody. It has a large environmental warning for “dihydrogen monoxide” on it. If it’s not a parody, it was written by an honest to goddess drooling lunatic.

[Gfactor]

@Una Persson

joechip236, students of illuminated manuscripts and tapestries from the Middle Ages and Renaissance often run into the same thing, with belligerent librarians steadfastly saying that because they own the book, they also own the copyright, and that even a 1000 year-old tapestry can’t be photographed without their permission due to “copyright.” :rolleyes:

I agree copyright does not cover the situation. It’s not an intellectual property issue at all. As the owners of personal property, though, they are permitted to impose whatever conditions on the lease or license of the item they desire. They could, for example, bar cameras from the library (they’re the owner of the real property, too) and require you to examine the tapestry only in a certain room. The difference would be in the remedy. Copyright violations give rise to statutory damages, virtually automatic injunctions, and seizure and destruction of infringing works. These remedies aren’t ordinarily available in civil cases.

[Tim_T-Bonham.net]

@BJMoose

Now there is an interesting question: Could a public domain art work with a copyright notice added to it be considered a copyrightable work? After all, they did add something new and unique to the old work - a copyright notice! I suppose the answer would be that there’s nothing particularly original or creative about a copyright notice per se.

Absolutely not. For 2 reasons.

1. Once something goes out of copyright, it cannot be put back under copyright.

2. They did not have a copyright on the original artwork, so they had no authority to put a copyright notice on it. In fact, there is a section of the law prohibiting “false claim of copyright”. Their action of falsely claiming copyright is an illegal action, and it’s a general principle in law that people are not allowed to profit from an illegal action.

[Tim_T-Bonham.net]

@mlees

Could the decendants of Abraham Lincoln make the claim (and have it stick) that the auto-biography and photos are the rightful property of the Lincoln family (presumadely stolen from them over 130 years ago), demand the return of the stuff, and deny Sampiro permission to publish the stuff?

First, the copyright on the photos belongs to the photographer who took them (or his heirs), not the people photographed.

Second, they can’t just “presume” that these items were stolen from their ancestors, they have to have proof of that. And that might be hard, if they didn’t even know that they existed before you found them.

[joechip236]

@Gfactor

I agree copyright does not cover the situation. It’s not an intellectual property issue at all. As the owners of personal property, though, they are permitted to impose whatever conditions on the lease or license of the item they desire. They could, for example, bar cameras from the library (they’re the owner of the real property, too) and require you to examine the tapestry only in a certain room. The difference would be in the remedy. Copyright violations give rise to statutory damages, virtually automatic injunctions, and seizure and destruction of infringing works. These remedies aren’t ordinarily available in civil cases.

Some libraries handle this very deviously by making you sign an agreement before giving you access to the item, and said agreement may contain huge restrictions on what you can do. At that point it becomes a contractual issue rather than a copyright issue. I’ve never heard of a library taking someone to court over one of these access agreements, but it could happen.

[Mycroft_H]

@Una Persson

OK, on further review, I’m questioning whether or not that page is a parody. It has a large environmental warning for “dihydrogen monoxide” on it. If it’s not a parody, it was written by an honest to goddess drooling lunatic.

Yeah, what little I could stand to read really does have a strange mixture of seriousness and parody. Of course the seriousness part looks like what happens when someone who is anal gets a stick up their butt. :eek: