Wednesday, October 13, 2010

Can Copyright Be Claimed on Digitized Public Domain Documents?

Last week I wrote “Can I Freely Copy Public Domain Documents?” and asked interested legal minds to respond to some questions. James Tanner, attorney and author of Genealogy's Star responded in his article, “Online genealogy documents in the public domain?” Thanks, James!

You might enjoy the interesting comments from your fellow Insider readers. John pointed out the hyperbole of my statement, “you enter into a contract wherein you promise not to take their stuff.” Several readers commented on what the Ancestry.com Terms and Conditions allows and I’ve softened the statement so that it is merely parabole.

Does Digitization Create Copyright?

Speaking of James Tanner, I enjoyed his three recent articles on copyrights and genealogy. See

These articles reminded me of a longstanding line of reasoning that nags at me.

Let me make it clear up front, I don't like the possibility that digitization creates a copyrightable work.

But I think there are situations where public domain documents can be artistically incorporated into a copyrightable work, perhaps in such a way that the public domain document can not be recovered separately from the protected work.

Microfilm scanning at Ancestry.com
An employee at Ancestry.com 
operates a microfilm scanner.

Consider the line of reasoning below. I start with a situation that I think produces a copyrightable photograph. I go through many incremental changes. At what point—if any—does the resulting photograph no longer qualify for copyright protection?

  • If a photographer takes an artistic photograph of a public domain document—using colored lights, projecting textures onto its face, picking intriguing, aesthetic angles—would the result be a copyrightable work? (I assume the text of the document remains in the public domain, but that the photographer’s artistic rendering is copyrightable.)
  • What if the document was the original Declaration of Independence, and the photographer employed the exact same treatments—lighting, creative angles, and so forth—as a way to create a photograph that was more legible than the original?
  • What if the document is already legible but for some reason considerable skill and originality is necessary to make the photograph as legible as the original?
  • What if the photographer is able to quantify his originality into an original process that works for him every time? Ignore patentability. Is the resulting photograph a copyrightable work?
  • Is copyrightability affected if the photographer’s process becomes known to others?
  • Does it matter if his process requires so much skill, artistry, and experience that others cannot reproduce it?
  • Is it still artistic if he automates the process?
  • Does it matter if others have access to his automation?
  • What if advances in technology make it easy for anyone to achieve the result by merely pushing a button?

I've read that digitizing microfilm is—or was—part art and part science. I've read that FamilySearch developed technology to automatically detect film densities and adjust lamp temperature and such so that digitizing is no longer part art. When it was part art, was the result copyrightable? Now that it is no longer partly artistic, is the result not copyrightable?

Perhaps some IP expert could shed some light on this for me—and you.

2 comments:

  1. Thanks for the references to my posts. By the way, almost every question you ask in this post corresponds to a Federal Court case on copyright. I'll start researching and see what I come up with. Most of the questions have been litigated and some of the results are surprising.

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  2. The Bridgeman v. Corel case established, and several other courts have followed, the principle that a "slavish copy" does not have enough originality to warrant copyright protection. Skill in making that copy, no matter how great it is (and we all know how difficult it can be to make a good copy), also is not by itself "original" enough to warrant copyright protection. You can certainly take a creative photo of the Declaration of Independence that may have copyrightable originality in it, but there is nothing that would prevent someone from extracting the original public domain document; your protection only extends to what you add.

    You can read more about Bridgeman and this reasoning in my book Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, which is available either for purchase or as a free download.

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