Can enhanced, scanned images be copyrighted?

In my last post, I started to answer some questions posed by The Ancestry Insider in his post entitled, "Can Copyright Be Claimed on Digitized Public Domain Documents?" Here is the second question of the series: "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?"

The next question asked by The Ancestry Insider is legally the same as the one above, it is "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?"

The Declaration of Independence is actually a good example of a public domain document. The term "public domain" is not defined in the U.S. Copyright law but any work that is not specifically protected by the copyright law properly becomes part of the public domain. This is sort-of a backward definition. Once a work enters the public domain, no individual-not even the creator-may copyright it. See Golan v. Gonzales, 501 F.3d 1179 (Colo. 2007).

The question from The Ancestry Insider raises the legal issue of what the copyright law calls a derivative work. In this case, the copyright law does have a definition in the statutes. "A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”." The questions asked by The Ancestry Insider, put into legal jargon, would essentially be whether or not the actions of the photographer were sufficient to create a derivative work.

In the case of Eastern Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F.Supp.2d 395, 417-18 (S.D.N.Y.2000) the court held that "when a photographer “personally supervised the lay-out of the items that were photographed, positioned them in what she thought an attractive manner, selected particular angles and lighting, and in some cases even had the images enhanced by a computer to achieve the desired outcome ... [t]he creative elements asserted [satisfied] the minimal originality requirement for copyright."

So the answer to the two questions above in both cases is yes, the enhanced photographs or scans would probably be copyrightable but the issue of whether or not a copyright could be maintained would depend on the degree of creativity used and whether or not the resultant photograph would be or even could be considered a derivative work.

I would give my own opinion that if the only issue is legibility and there is no artistic intent, the photographer or scanner would have a much more difficult time convincing any court that the scan or photograph was a derivative work and therefore protected by copyright.

I hope I get the time to answer the next questions. I guess we'll see what happens.

Nothing I say in these blog posts is to be construed as a legal opinion about any particular case or controversy. They are my opinion only and nothing I say or write should be construed to form an attorney-client relationship.