[Discuss] discuss Digest, Vol 23, Issue 12

[Matt Maier]

Michael,
Thanks for that clear response, but that only seems to inspire another
question(s) :)

Presumably that idea that photographs require some amount of creative
decision making has persisted, despite the fact that most photographs these
days are taking on totally automatic settings. In that case, it would seem
like all of the creativity was on the part of the team that build and
programmed the camera so that it could make similar decisions to an expert
photographer. So if a 3D scanner had to be programmed to respond to
changing conditions like a camera, would it still qualify as creative
decision making?

Do they separate the copyright that the photographer holds on the picture
itself from anything that might have been captured in that picture? Like if
I take a picture of the first page of a book, I'd have a copyright on my
picture, but not on the stuff the book says, whereas if I wrote out the
text of the first page by hand, I'd have a copyright on what that says?

Or, rather, is it more about the intention of the action? If my intention
is to create an exact copy of something, and anything other than an exact
copy would be considered a mistake, then I don't get a copyright on the new
thing. But if I want something new that just happens to incorporate, or be
inspired by, the old thing then I get a copyright on the new thing.


On Wed, Apr 16, 2014 at 2:47 PM, Michael Weinberg <
mweinberg at publicknowledge.org> wrote:

> 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
> improvise).
>
> 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
> copyright.
>
> 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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>
>
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