Re: Images of Public Domain Images
March 14, 1998

Date: Sat, 14 Mar 1998 10:47:29 -0500
Reply-To: cni-copyright@cni.org
Sender: owner-cni-copyright@cni.org
From: "Robert A. Baron"
To: Multiple recipients of list cni-copyright@cni.org
Subject: Re: Images of Public Domain Images
Visits from 7/10/1998 to 4/11/2001 = 0497

Whether a photograph of a public domain work is itself devoid of
copyrightable material is a question the answer to which often depends
1) upon the outlook of the answerer and 2) upon what he expects to find
in such an illustration and 3) to what extent that finding implicates
his understanding of minimal creativity.

Speaking as an historian of images, while it is hard to deny that a
photographer may wish to reproduce a work as faithfully as possible, a
host of decisions are made by him and by those involved in the process
of preparing such photographs for publication, which, while ostensibly
technical in nature are, in fact, aesthetic judgments which encode
personal and societal expectations.  As a result, in broad terms, it is
possible to look at the history of "documentary" reproductions and see
in that history the kind of "stylistic" evolution or changes one
normally wishes to chart in the creation of original works.

Highly trained photographers make stylistic decisions consciously as a
matter of course.  People who operate scanning machines, too, make such
decisions.  Typically, photographers will tell you that they are making
the reproductions look "good." And this word "good" is code for the
result of their stylistic interpretation of the original.  This is true
even when they use the word "accurate" to describe the result of their
work, for "accurate" is often used as a synonym of "good" in such cases.
Even everyday snap-shot photographers make these kinds of stylistic
decisions, but for them the results may be based on decisions made for
them by manufacturers of cameras, film and processors, and are not
exactly "personal" decisions, except inasmuch as they choose to buy one
film or camera over another.  In Disneyland/world even the choice of
what to photograph is suggested by selected "Kodak" vantage points.

In reality, the opportunity for a photographer to produce a "subjective"
interpretation of his subject varies with the nature of the object.
When a photographer takes as his subject architecture or sculpture or
anything three-dimensional that is lit with light so as to create volume
and space, or anything for which the photographer must choose lenses,
angles, etc.  the result is obviously an interpretation and is therefore
obviously copyrightable.  At the other end of this spectrum lie
two-dimensional materials in black and white or mostly in black and
white.  The microfilms and graphic works cited in an earlier post in
this thread and the contemporary reproductions of public domain printed
materials all qualify as non-copyrightable (or nearly so) in my opinion.

So the problem is to decide what minimal level of creativity qualifies a
reproduction of a public domain image as copyrightable.  The tradition
in the world of publishing art is to accept all "reproductive" images as
bearing copyright (until they, themselves, go into the public domain);
but, as we have seen in this thread and elsewhere, this assumption is
being challenged more and more.  [See especially the paper Gary Schwartz
(a well-known art historian and Rembrandt scholar) read at the College
Art Association's Copyright and Fair Use "Town Meeting" (Feb 1998).]

Since, in theory, all reproductions imply selection and interpretation
processes along the road from photographer to published image, to answer
this question we must decide what minimal creativity and/or originality
actually means or what is acceptable to our society.

It is not sufficient to argue that the "intent" of the photographer or
publisher is to produce a faithful non-inventive copy.  This argument
does not work because on one hand, as mentioned above, the technical
decisions made to reproduce an image are really aesthetic decisions and
may even be unknown to the photographer, himself; and, on the other
hand, because the results of such decisions--the photograph or the
printed page--are obviously not exact "reproductions" of the original--
they are not simulacra.  While you can reproduce Moby Dick faithfully,
you cannot faithfully reproduce any painting photographically.  The
result will always be less from the point of view of the painting and
paradoxically more from the point of view of the reproduction.  There is
a very interesting article on how copyright law misinterprets the
meaning of "copy" and "reproduction" as applied to images.  This paper
was also delivered at the CAA Town Meeting.  See Peter Walsh's "The Coy
Copy: Technology, Copyright, and the Mystique of Images".

The final decision on this matter will depend upon the interplay of
political and social values.  Do we want a strong and vital public
domain in which the unique (i.e.  singular) works of artistic creation
may eventually reside? Or do we want to perpetuate the ability of the
holders of public domain objects to control their interest in these
objects by rewarding them, in essence, with everlasting renewable rights
to control the use and distribution of those images society most wants
to see.  Do museums and other holders of images need the incentive given
them by rewarding them copyright in their reproductive images so that
they will continue to produce new, newly interpretive images of their
works?

If one looks at the generally unaccepted CONFU guidelines on the fair
use of digital images, it is clear that those who drafted this set of
rules believe that such "reproductive" images were copyrightable.  As
they denied educational institutions fair use in their reproduction,
they insisted that every underlying image be cleared before placing such
images in a visual resources collection.  The ludicrous imposition of
the resulting tangle of bureaucracy involved in clearing such rights may
help readers decide the value of claiming copyright to reproductive and
intermediary images.

In a curious way, deciding this question is not unlike deciding where to
draw the line for fair use. The answer lies in the result one wants to
achieve. And there's the rub: whose result is going to be achieved?

(For further discussion of this issue readers may wish to refer to my
Introduction to "Copyright and Fair Use: The Great Image Debate."
especially paragraphs 46ff.)

Robert A. Baron

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