Expert: Kacey Cahill - 5/7/2009

Question
QUESTION: Hello Ms. Cahil,

I do a lot of research in the French Revolutionary/Georgian Era. Often, I come up against some body or other claiming copyright over material for which the copyright is plainly expired (say: a book writen in 1818 or a lithograph penned in 1789). This puzzles me.

I'm aware that in most countries, copyright lasts for "seventy years after the death of the author."
A seach or reproduction fee may be one thing--but what possible right does, say, an image library have, to claim copyright over things that, one supposes, clearly entered the Public Domain well over a century ago?

Are they merely fishing for fees from gullible "customers"?

Regards,
Dan


ANSWER: Dear Dan, You are correct with respect to general US copyright law.  The right lasts with respect to an individually created work -- the author's life pus 70 years. There are variations, depending if it is a compilation, an anonymous work, etc., but I think your question is going to a different end.  Assuming that the copyright is expired on its terms, how can somebody try to resurrect the right?  
The only way one could do that is buy compiling works or casting works in a unique/creative (low bar) way and them claiming the copyright on the compilation or the particular way in which it is recorded.  For instance.  A person can take pictures done by the Masters (public domain) and create a book -- that book is copyrighted.  Nobody can take that book and run off a copy of it without the author's permission.  Everyone is still free to go to the source and make their own books, but you cannot copy his/hers.  Also, photos or other "renderings" of public domain works can get you.  The photographer that takes a picture of pretty much anything owns the copyright in that picture (not the underlying item -- just the picture).  So, somebody gets permission to go in and take pictures of the Master works -- he/she owns the copyrights in those pictures.

I hope this is helpful, but please understand that this is not legal advice and is intended for educational purposes only.

Kind regards,

Kacey Cahill
www.kaceylaw.com
kcahill@kaceylaw.com

---------- FOLLOW-UP ----------

QUESTION: Hello again, Ms. Cahil,

Thank you for your detailed and informative answer.

Re the last part: "So, somebody gets permission to go in and take pictures of the Master works -- he/she owns the copyrights in those pictures."

Copyright as a principle infers "artistic content only." Thus, is the central point of something I read somewhere and several years ago, of a U.S. decision distinguishing between a photo that contains inherent artistic content--and so has copyright--and a photo taken "purely for documentary purposes," which has not. The reasoning, I recall, was that an image purporting to be "documentary" is by definition devoid of artistic content. (Otherwise it would not be documentary; it would be an "impression" of the original.) Given that, and given I want to obtain copies of French Revolutionary litographs from the Bibloteque Nationale de France, they can, the way I see it, charge me a "fee"--for "services rendered" (like: care, search, retrevial, and forwarding)--but not for "copyright,"  which is a very different thing. I doubt the BNF would agree--but I wonder if you do. (Do not France and the US {amongst others} adhere to the same International Copyright Convention?)

No doubt too, I will have to pay BNF their extortionate prices, but I feel they have one great brass neck claiming copyright. They should know better! (Accordingly I'm wondering if I can get away with not crediting them with "Copyright" in my book.

regards again,
Dan

Answer
France and the rest of most of the world adhere to the Berne convention, yes.  The line between documentary vs artistic purposes seems tempting to go after (which argument seems logical, but I am not aware of the case), but if you want their lithographs, don't you have to pay their prices no matter what they call it?  In addition, such a determination, if possible, would have to be made by a court, which means legal fees and lots of them.

Seems like if you want the work, and you can't photograph it yourself, you have to deal with them on their terms.

Kind regards,

Kacey Cahill
Principal, Kacey Cahill Law
kcahill@kaceylaw.com