Legal Question on the Applicability of a Certain Copyright Case to Me

I have asked questions about the validity of copyrights on photographs and scans of public domain images a few times in the past here. And I have received some conflicting information, from lawyers, on both sides.

Because this is long, I will highlight my GQ’s in red.

It comes down to my whole “copyright dilemma”, which I will summarize for those who are bored of seeing it again:

But examine this case, BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

In summary, the court seems to have found that taking a photograph of a 2-dimensional artwork is not sufficient to generate a new copyright. In fact, by extension, it seems to say that scanning the photograph and creating a JPG from it also does not create a new copyright.

Thus, those people who try to claim copyright on scans of 200-year old artworks with Full Righteous Indignation seem to be mistaken.

Also interesting is a footnote in another analysis of this ruling is that those who claim copyright on digital scans of public domain works may be falling afoul of criminal provisions of the copyright act, by falsely asserting a copyright.

I don’t know if that is true, as I was told here on the SDMB in the past that it was “not a crime to assert a copyright where no right existed, only to infringe on a copyright”. :confused:

My questions:

  1. Because I am a bit ignorant of these sorts of civil cases, to what extent can I use this ruling as a defense for building my online art gallery of public domain (more than 100-year old) works? (assume Kansas as the jurisdiction)

  2. Am I reading the results of this case properly?

  3. If some arrogant person mails me and says they have “copyright” over a 600-year old Heironymous Bosch painting because they “scanned it from a book” (ignoring the fact that by their own fluid definition of “copyright”, they themselves are guilty of infringement :rolleyes: ), have they falsely assserted a claim of copyright? Have they committed a criminal act, or must there be an intent to defraud?

Oo… That’s an interesting question…

  1. As far as the book publisher goes, if everything is on the up and up, you’re dealing with a licenced use of an image.

E.G. I am a songwriter, and I write and record a cool song, “Crayons.” Some movie producer wants to use it in his new film. We negociate a contract, they pay me a licensing fee (plus I get royalities every time the movie is shown.)

The producer owns the copyright to the film in its entirety. He doesn’t own the copyright of my song contained within, but he has licenced it in perpetuity. Same goes for book pulbishers.

A book publisher would only sue for infringment if there were other recognisable information in the scan – such as text (although they could try).

  1. Another important aspect in infringement suits is “access”. I write a cool song, “Crayons” – and show it to another musican. He likes it a lot and wants to borrow it. The recording engineer makes an extra copy for him to borrow. Suddenly that musician releases MY song as “Markers.” I can sue easily because I can prove that it wasn’t just a “bizarre coincidence” – I have proof that he had “access” to my original composition.

The burden of proof for photographic images can be a pain in the butt. If I photographed the Mona Lisa (adding no artistic embellishments of my own – just a straightforward, accurate record of the original) – technically, I would own the copyright of the image contained in my negatives. But if I then saw the image in a book, how would I be able to prove that it’s MY photo and not one of the millions of Mona Lisa phots that are out there?

(Again, “access” I could try to sue if I had proof that the publisher had access to my negatives and no one else’s).

So for your #3: The Arrogant Person (AP) who says “that is my scan”…

  1. You can reply “proove it!”
  2. You can reply “so sue me!”

“So sue me” could potentially lead to a court case where

a) AP would have to prove ownership of copyright (good luck there, AP).

b) If AP is successful, he/she may get an injunction against your use of the image. That means, you have to take the image off your site.

c) AP could also try sue for damages. In which case, AP would have to prove he/she suffered damages of some kind (financial, reputation etc…) And if AP wins, the court may ward damages accordingly. (And possibly legal expenses).

All of this is fairly unlikely if it was a scanned image. 'Cause it’s really, really hard to come up with “proof of copyright ownership.”

Ask AP to send you concrete, incontrovertable proof of copyright ownership. If AP can prove solidly that it’s his/her image, then replace it with a different one.

  1. I’d say that, as long as the image is PD, it’s permissible to make scans of that image.

  2. The ruling seems to apply if someone scans a PD image and then claims copyright on it. It does not address the issue of scanning a PD image in a book, but if the image is PD, it’s perfectly acceptable to make a copy of it. For instance, if you find a copy of Hamlet, you can’t be sued if you copy it or even distribute it as a book. The publisher of the PD work knows he cannot claim copyright protection.

  3. False claim of copyright is not a criminal act (neither is copyright infringement, but that’s another story). You can’t have the guy arrested. If he claims copyright falsely, then it goes to court (as it would if his claim were genuine).

Trust your reading of the case.

Also, be careful of compilations.

So be careful of “original” orderings and groupings of public domain material.

As to whether falsly asserting a copyright is criminal

Note that fraudlent intent is a requirement.