At 03:35 PM 2/3/2006, James Capobianco wrote: >Perhaps you've already had this discussion, but as far as I understand >copyright law, a photo seeking to faithfully reproduce a public domain >work (in this case, a tombstone), does not itself have copyright >protection. The Bridgeman Art Library v. Corel Corp. (1999) made it >clear that exact photographic reproductions of works in the public >domain are not copyrightable. Um, I'm afraid you have missed some crucial language in the Bridgeman V. Corel decision. Actually, the decision ultimately had nothing to do with the public domain status of the work being copied. The question decided was whether a "slavish" copy was an original work eligible for copyright protection. The court decided it was not, i.e. "Absent a genuine difference between the underlying work of art and the copy of it for which protection is sought, the public interest in promoting progress in the arts -- indeed, the constitutional demand -- could hardly be served." The Court indicated that technical skill in accurately reproducing the work being copied did not make the copy a creative work eligible for copyright protection. On the other hand. you and I could stand side by side and photograph the same tombstone at the same time and each of our photographs would be copyrighted. While the difference in perspective might be a matter of inches, each perspective was original. If I photographed a tombstone today, and marked the spot for you to stand on to duplicate the photo tomorrow, yours would still be "original". The time of day could be different, the day of the year (and therefore the light) would be different, if you were taller or shorter than I, the perspective would be different, and you might even decide to come back a month later when the sun would be lower in the sky <g> The data, i.e. names, dates, etc., inscribed on the tombstone is public domain. A photograph of the tombstone is copyrighted. Pat

After reading through the bridgeman corel decision about photoreproduction of public domain art, I was struck by a certain part of the decision. I think this is actually from a later judgement related to the original decision, which I've found through LexisNexis: 'There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. "Elements of originality . . . may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved." n39 [*197] But "slavish copying," although doubtless requiring technical skill and effort, does not qualify. n40 As the Supreme Court indicated in Feist, "sweat of the brow" alone is not the "creative spark" which is the sine qua non of originality. n41' Can someone explain, in the light of issues brought up in the paragraph above, how database vendors (such as Proquest, for instance) can claim copyright on digital copies of public domain censuses and other works? I am aware that most databases that reproduce public domain historical data also have license agreements that prohibit publication and other uses beyond fair use, but outside of these agreements, I wonder how could a digital scan of a document fulfil the need for creativity, and not just be a "slavish copy" requiring "technical skill and effort" described in the above Bridgeman v. Corel decision? I am sincerely trying to understand this application of copyright, so I'd appreciate any expertise and insight into this. Best, James