# Legal Question on the Applicability of a Certain Copyright Case to Me **URL:** \ **Category:** Factual Questions\ **Created:** [March 22, 2003, 2:53pm UTC](https://boards.straightdope.com/t/legal-question-on-the-applicability-of-a-certain-copyright-case-to-me/163367 "2003-03-22T14:53:19Z")\ **Posts on this page:** 4\ **Page:** 1
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [March 22, 2003, 2:53pm UTC](https://boards.straightdope.com/t/legal-question-on-the-applicability-of-a-certain-copyright-case-to-me/163367/1 "2003-03-22T14:53:19Z")
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: > [@](#): > > Take the example of a classic work - Oath of the Horati by Jaques-Louis David, which has to be at least 130 years out of copyright. This work should clearly and unambiguously be in the public domain. > > Now, a photographer comes along and takes a photo of it. This photographer will allege that they own “copyright” over their photographic rendering of it. How? They didn’t create the work? And don’t assume it’s a professional photographer who fiddled with umpteen settings and filters etc. - assume it’s just a point-and-click digital camera. How can they possibly claim to hold copyright over that work? > > Then, this photographer sells their photograph to a person who is making an art book. In this book, they put the unaltered photograph of Horati. The person making the book will now claim that they own copyright over the book and all material in it, including the photograph. How? > > Now, a person buys the art book, and thinks that the picture of Horati is inspiring enough that they want it on their computer. So they slap it down on their scanner, and scan it as a JPG. Now - they will claim that they own the copyright to this scan - even though they added nothing whatsoever to the work! How? > > Now, another person finds the scan, thinks it would look great on their website, and is given it by the person who scanned it. They then upload it to Geocities. Now, they put a notice on all of their web pages “All images copyright of me”. How? > > Now, Una comes along, sees a scan of a 200-year old work, says “there’s no way that can be copyrighted”, and right-click downloads it. > > And she is the criminal now. How’d that happen? > > Let’s recap: > > - David created the work about 200 years ago. > > - The photographer claims that they have copyright over a picture taken of the work which has no additional substantive creative content. > > - The publisher of the art book thinks they have copyright over the image. > > - The person with the scanner thinks they have copyright over their scan. > > - The person making the web site thinks this scan is now theirs, and that they own copyright over it. > > How can so many people claim to be suckling at the same proverbial intellectual teat? Is copyright law really meant to reward people that do nothing other than change media on an ancient work? But examine this case, _BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)_ > **[Copyright](https://www.law.cornell.edu/wex/copyright)** 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”. 😕 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? ---
**Author:** ![Eats\_Crayons](https://avatars.discourse-cdn.com/v4/letter/e/278dde/32.png) [@Eats\_Crayons](https://boards.straightdope.com/u/Eats_Crayons)\ **Post date:** [March 22, 2003, 5:17pm UTC](https://boards.straightdope.com/t/legal-question-on-the-applicability-of-a-certain-copyright-case-to-me/163367/2 "2003-03-22T17:17:43Z")
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. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [March 22, 2003, 6:07pm UTC](https://boards.straightdope.com/t/legal-question-on-the-applicability-of-a-certain-copyright-case-to-me/163367/3 "2003-03-22T18:07:24Z")
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). ---
**Author:** ![Pencil\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)\ **Post date:** [March 23, 2003, 12:15am UTC](https://boards.straightdope.com/t/legal-question-on-the-applicability-of-a-certain-copyright-case-to-me/163367/4 "2003-03-23T00:15:02Z")
Trust your reading of the case. Also, be careful of compilations. > [@](#): > > § 103. Subject matter of copyright: Compilations and derivative works > (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. > > (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. So be careful of “original” orderings and groupings of public domain material. As to whether falsly asserting a copyright is criminal > [@](#): > > § 507. Limitations on actions > © Fraudulent Copyright Notice.-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. Note that fraudlent intent is a requirement.