Can you copyright your scanned images?

This post continues a discussion started by The Ancestry Insider in a post entitled, "Can Copyright Be Claimed on Digitized Public Domain Documents?" As The Ancestry Insider acknowledges, copyright protection is not an absolute, but a spectrum of possible coverages by the law. At one end, you have an original work, one you created entirely by your own efforts and is clearly covered by both the spirit and letter of the U.S. Copyright Law. At the other end, you have a document that is one of the exceptions to the law, either created by the U.S. government or old enough to have lost copyright coverage. The whole issue raised by The Ancestry Insider revolves around the question of what is and what is not in the public domain.

As genealogists, we deal in documents, old, new and in between. Usually, we are more interested in the information than we are in the actual document and we are perfectly happy to copy out the information or use a photocopy. But the rise of cheap computer storage devices, such as flash drives, and very inexpensive scanning devices, including digital cameras, has created explosive growth in the availability and usefulness of high quality digitized images both for personal use and online. It is natural that new issues concerning copyright would accompany this growth in the availability of images.

As an example, FamilySearch, the genealogical organization of The Church of Jesus Christ of Latter-day Saints, has a huge digitization project with the goal of digitizing the images from over 2.5 million rolls of microfilm. There are also other huge digitization projects going on all around the world. For example, the Library of Congress has now digitized millions of its documents and put them online. It is not surprising that copyright issues are at the forefront of the factors considered in putting together these huge online resources.

Given that many millions of images are now freely available online, it is also not surprising that individual users often make copies without a second thought about copyright ownership of the image they are copying.

This state of affairs brings us to the remaining questions asked by The Ancestry Insider:

• 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?

These questions all correctly reflect the basic issue which I identify as whether or not the hypothetical situations are those of a copyright nature or are governed by patent law? Are we talking about the product or the procedure? It is highly unlikely that the average genealogist is going to run into an issue involving patent infringement by doing genealogical research and copying old documents. A copyright covers the work, not the procedure. The procedure or the equipment may be covered by a patent, but that is an entirely different question and not really relevant to the issue of using old documents. Patent law is very specialized and technical and I am not a patent attorney.

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?
This hypothetical question confuses the two issues of copyright and patent. Whether or not  the process was unique and patentable would have no bearing on the availability of a copyright to the work produced. Just because the manufacturer either does or does not have patent on the camera or scanner makes no difference as to whether or not the work product is subject to copyright. The real question is whether or not there is a copyright in published works. The answer is yes. It then follows that even if you publish a million copies of a book, the book is still under copyright. That is the whole idea, a copyright is the right to make copies. So even if the photographer makes millions of copies, each one will still have the same copyright protection as the original, as long as the copyright exists and as long as the photographer owns the rights.

Is copyrightability affected if the photographer’s process becomes known to others?

Whether or not the process is known to others or even can be duplicated is also immaterial. Just about anyone can buy a digital camera and take a copyrighted picture. All they have to do is push the button. The fact that the whole world knows how to reproduce the process that creates the work makes no difference to the availability of a copyright.

Does it matter if his process requires so much skill, artistry, and experience that others cannot reproduce it?
Skill, artistry, and experience are exactly what are protected by copyright law. Yes, they matter, yes, you have protection for your skill, artistry, and experience.

Is it still artistic if he automates the process?
Automation of the production of the process also makes no difference. If I produce a screen saver with a selection of my photographs and make copies for sale, I do not lose the copyright on my original work. Try copying a popular song and publishing it for profit and see what happens? Try putting on a copyrighted play like The Lion King without paying the royalties and see what happens. Do you get the point?

Does it matter if others have access to his automation?
The simple answer is no. The process does not affect whether or not a work is subject to copyright.

What if advances in technology make it easy for anyone to achieve the result by merely pushing a button?
OK, this question is more of a problem. Once again, the process has no bearing on whether or not the end product, i.e. the work, is subject to copyright. If what is meant here is that the technology allows you to reproduce what some one else has done in a more accurate fashion, then reproduction is not a way to avoid copyright. But if what is meant, is that the before, the process involved skill, artistry and experience and now anyone can have those results, the answer would still depend on the degree that those skills were still necessary. I someone takes an artistic picture of an old document and the work is considered subject to copyright, I do not avoid the other copyright claim merely because I can easily reproduce the work myself.

 Now, back to the issue of reproducing a work in the public domain. Let's say I have an old parish register that is impossible to read. I figure out a way to digitally enhance the image to make it readable. That is not a copyright issue. It is a patent issue. If the process is unique enough to satisfy the patent law and I obtain a patent on the process, as long as the patent exists that process is protected and anyone using the same process would have to pay me royalties. (This is a really simple explanation of patent law and should not be taken as an explanation of the whole process). Meanwhile, there is an entirely separate question, are any of the images produced by my system subject to copyright? I would have a hard time imagining a process so unique that it would automatically create a copyrighted product from a public domain document. That result would be very, very unlikely.

Do any of the larger genealogical organizations that are digitizing documents claim a "copyright" in the documents they digitize? Well, yes, they do. Is their copyright claim defensible? Are you willing to spend the money to go to Federal District Court and find out?

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.