[Discuss] discuss Digest, Vol 23, Issue 12

Michael Weinberg mweinberg at publicknowledge.org
Wed Apr 16 20:47:54 UTC 2014

Ah, good question.  The answer to that is actually no.  The important thing
to take into consideration here is the element of creativity, not the
amount of work done.    The US Supreme Court has explicitly rejected the
"sweat of the brow" theory of copyright whereby lots of work = getting a
copyright.  Feist v. Rural Telephone
Service<http://en.wikipedia.org/wiki/Feist_v._Rural>was a dispute
about a telephone directory.  While putting together a
telephone directly undoubtedly takes a lot of effort, the court found that
it took no creativity (the nature of a directory requires you to list all
of the entries alphabetically so you don't really have any room to

Similarly, the goal of a good scan is to make an exact copy - in other
words, to introduce as little extra creativity as possible.  Therefore no

It is probably worth noting that this was the same way that courts viewed
photograph in photography's early days.  Over time, courts decided that the
setup and composition of a picture includes enough decisions that open the
door to creative decisionmaking that photographs could be protected by
copyright.  It is certainly possible that scanning could take a similar
path towards copyrightability over time.  However, the utilitarian nature
of most scanning makes that less likely in my mind.

On Tue, Apr 15, 2014 at 7:07 PM, Matt Maier <blueback09 at gmail.com> wrote:

> Michael,
> So would that mean 3D scanning could create a new copyright as long as the
> person doing the scanning has to put some effort into it? Like, if they
> have to dust the item to reduce reflections and clean up the point cloud
> afterwards? But they wouldn't have a new copyright if the scanner was so
> good it only took one step?
>  Matt
> On Tue, Apr 15, 2014 at 3:28 PM, Michael Weinberg <
> mweinberg at publicknowledge.org> wrote:
>> In the US, one requirement for copyright is some element of creativity.
>> Courts recognize that staging a photograph requires some creative decision
>> making (the threshold for creativity is low so it pretty much includes all
>> photographs).  However, the goal of scanning is to slavishly represent
>> reality as accurately as possible.  Therefore, it is a process that is
>> designed to eliminate as much decisionmaking by the scanner as possible.
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Michael Weinberg, Vice President, PK Thinks
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