Can I obtain a copyright of a copy of an old document?

Recent news releases in the genealogical community highlight additions to more huge online databases of historic images, including private documents such as journals, wills, maps and other such items. Many of these images are put online by companies trying to charge a fee for some aspect of either searching or reproducing the documents. This raises a more than academic question, can anyone obtain copyright protection by virtue of scanning an old documents and putting it into an online database? The answer involves more than a simple yes or no.

Let's say I purchase or find a paper copy of an 1887 state map of Arizona Territory. Without going into a long analysis, it is pretty easy to ascertain that there is no copyright protection for a document this old for the map's original publisher or cartographer. In other words, a document that old is now considered to be in the public domain and not protected by any present U.S. copyright law from any type of use or reproduction. So now the question becomes, is there anything I can do to the map to obtain a copyright? The answer is maybe.

To begin the answer, first, it is clear from U.S. law that a scanned image of a copyright protected document is also copyrighted. See Moberg v. 33T LLC, 666 F.Supp.2d 415, 92 U.S.P.Q.2d 1242, D.Del., October 06, 2009 (NO. CIV.08-625 NLH JS). You cannot avoid a valid copyright by merely copying the document into a different media or format. But what about a document that is clearly not subject to any copyright protection? Does it follow that merely copying a public domain document does not create a claim to copyright protection? Surprisingly, the issue of whether or not making a digital copy of an out-of-copyright document creates some new claim to a copyright is hotly contested.

It is common, as indicated by the constant flow of news releases, that many for-profit business entities are capitalizing on the demand for copies of historic documents. We have long since moved beyond the time when tourist stores and museum stores would sell replicas of historic documents, now companies are selling the opportunity to access genealogically significant documents in a major fashion. Inevitably, these companies are claiming copyright protection for their online images. Some of the companies (and other organizations, including government entities) are actually claiming ownership of the documents in addition to copyright protection.

Let's go back to the 1887 map of the Arizona Territory. The key determining whether or not a "copy" of the old map would acquire any copyright protection lies with the issue of "original expression." In most instances of genealogical records, it is apparent that no original information or design has been added to the original record whether the record is that of a U.S. Census, World War I Draft Registration or even the 1887 map. This position of the law stems from the interaction of two different legal positions; first, that facts cannot be copyrighted, and second, that compilations of facts generally can be. As explained in the U.S. Supreme Court case of Feist Publication, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S.Ct. 1282 (U.S. Kan. 1991), "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. . . Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Id., § 1.08 [C] [1]. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (CA2 1936)." The Court goes on to rule that Census data do not trigger copyright because these data are not "original" in the constitutional sense.

In looking into the case law further, we find that the Court considers "selection and arrangement" as criteria  for consideration of copyright infringement. Now, to the map, if I merely make a scanned image of the map, under the present guidelines, it is highly unlikely that the subsequent copy is subject to copyright. As the case of Meshwerks, Inc. v. Toyota Motor Sales U.S.A. Inc., 528 F.3d 1258 (Utah, 2008) states, "Because our copyright laws protect only “original” expression, the reason for refusing copyright protection to copies is clear, “since obviously a copier is not a creator, much less an ‘independent’ creator." The issue was also ruled upon in the case of Mannion v. Coors Brewing Co., 377 F.Supp. 2d (2005).

There are a number of cases following this analysis and holding that a photograph (or scanned image by extension) which is no more than a copy of the work of another as exact as science and technology permit lacks originality. See Schiffer Pub. Ltd. v. Chronicle Books, LLC (not reported in F.Supp 2d). It is very possible that a high fidelity copy of the 1887 map of Arizona would have no copyright protection whatsoever. So what if the online service watermarks the image with huge claims to copyright. Yea, so what? That might prevent someone from using that particular image for any purpose, but does not change the underlying conclusion that the copy of the public domain image is not subject to copyright.

There is, of course, a practical consideration. Do I really want to get into a copyright fight with some huge corporation? Of course not. So even if the company has no real valid copyright claim, the very fact that they make such a claim will likely persuade almost everyone to respect their non-existent rights.

More in the next post.