Genealogy challenge -- Back to the issues on public domain

First of all, I don't want to make this blog sound like a legal brief. Who, other than attorneys, would want to sit around and read legal briefs? Second, you can beat a topic to death. So, I don't want to get in a rut and drive across the Plateau on the same theme all the time. But, there is so much misinformation and folklore out there about "copyright" in the genealogy world that I feel compelled to speak up now and again.

In his latest post, The Ancestry Insider generously cites some of my recent articles. He entitles his post "Can Copyright Be Claimed on Digitized Public Domain Documents." The real issue behind the questions seems obvious to me, it is: can a large commercial genealogy company go out and digitize public records (really old stuff) and somehow make a claim that they now own all the rights to the documents? By allowing companies and organizations to digitize these records, are we, the public, losing rights to view and copy the digitized images? In this regard, The Ancestry Insider asks another series of questions. The answers to the questions vary from legal to practical. Because that is what I do, I will try and answer some (or all) of the questions. It looks like to me, that the answers may take more than one or two posts. So, bear with me, I will get to all of the questions.

I think I need to say something about legal answers. My father was also an attorney. One day, very early in my legal career I went into his office to ask a question. It was probably a pretty simple legal issue, but very new to me (like everything was at that time). After I finished explaining my question, he asked me a question back, "What do you want the law to be on that subject?" I said I wanted my client to win on the issue. He said so that is now the law, go to Court and prove it. In other words, in the United States we have a legal system based on English Common Law. We do not rely entirely on a long series of individual statutes (yeah, I could go on about that too) so much as how the Courts decide to enforce or not enforce the statutes that we have. Our system of law is based on a principle called stare decisis, in which our judges are obligated to follow precedents established by prior decisions. Becoming a lawyer is to a great extent learning how to understand and apply this principle to our clients' legal questions. So, to answer questions like those asked by The Ancestry Insider, as an attorney, I would go to the existing case law and see how the judges have already ruled. That gives me a very good idea of what they would do in the future in a similar case. As an attorney, I consider the cases, decide what the law will be and then go to court to prove my position. If I win, I am right. If I lose, I was wrong.

Here we go on the first question: "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.)"

This question has been addressed by the Federal Courts in a number of cases. Here is a quote from the case of Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909 (Ill. 1996), "Ansel Adams published multiple views of El Capitan in Yosemite National Park, in different seasons and lighting. He did not create the mountain, the park, the seasons, or the lighting, but his expression of those conditions is an artistic achievement. Anyone can take and sell a photo of El Capitan, but Ansel Adams' photos are protected by copyright." What applies to El Capitan, applies to almost anything within the public domain.

The legal name for the issue raised in the question above is that of originality. Here is another quote from the case of Toro Co. v. R & R Products Co., 787 F.2d 1208 (Minn. 1986), "Under originality case law a work need not be artistic or novel to achieve protection. Mazer v. Stein, 347 U.S. 201 (1954). Originality denotes only enough definite expression so that one may distinguish authorship. Id. at 214 (“they must be original, that is, the author's tangible expression of his ideas.”); Barrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884) (photograph is copyrightable because author's efforts in composing subject shows photograph was “an original work, the product of plaintiff's intellectual invention”). If the disputed work is similar to a pre-existing protected work or one in the public domain, the second work must contain some variation recognizable as that of the second author. L. Batlin & Sons, Inc. v. Snyder, 536 F.2d 486 (2nd Cir.) (en banc), cert. denied, 429 U.S. 857 (1976); Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2nd Cir.1951) (in order for a copy of a work in the public domain to be original, the author must have “contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’ ”)."

As you can probably guess from what the Courts said in these cases, if this type of issue comes up, the courts will likely decide the issues on a case-by-case basis. So the answer to the question is yes, a photographer's artistic rendering is likely copyrightable but whether or not the photographer would prevail in a court case would depend on the specific facts of each case.

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.