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[Comments] (7) Copyright Question: This is almost certainly a dumb question that I already know the answer to, but I'm in the position of the economist in the joke who ignores the $20 bill on the ground because if was really there, someone would have already picked it up.

I really like old catalogs like the Sears catalog, and for years I've waited for the day when someone would put them online. And then I waited a few more years. And then a few more years. And now I'm starting to think that it's not going to happen unless I do something about it. So what to do? Obviously the original catalogs are out of copyright, and in fact there's a cottage industry in putting out facsimiles. This cottage industry thrives to the extent that you can't reliably find original catalogs on auction sites even if there are any, because sellers stupidly or maliciously label their reprints as original.

So, can I buy a facsimile, scan the catalog pages (not the cover or newly-copyrighted introductory material), and put the scans online? Could I act as a private-sector Carl Malamud, buy a CD full of scans, and just dump them on a web site? I suspect the answer is yes. BUT. None of these facsimiles are complete copies! Most of them omit hundreds of pages from the original catalogs. This is 1) annoying and unsatisfying, and 2) makes the facsimile into a derivative work.

So, the editorial work that went into deciding which pages to keep and which to not, is that a part of the derivative work that can be copyrighted? It doesn't add anything new to the work, but clearly some work went into it. My traditional five seconds of research indicates that only original "material" can be copyrighted, and that a decision about what to leave out isn't "material". Is this right?

My backup question is why no one else has done this, apart from it being a big job. Many less interesting, equally long public domain documents have been digitized, which makes me think there's some subtle copyright problem I don't see.

There are a number of (mostly Canadian) old catalogs at the Internet Archive, including this cool sucker.


Posted by Jake at Sat Apr 12 2008 19:56


Your research is correct--copyright-wise, if you're just reproducing copies of material in the public domain, you should be fine. So buying replicas, then scanning them, then putting them online, is fine. The edited versions you're talking about are only copyrightable in terms of the editorial choices made--as long as you aren't reproducing the organization and omissions exactly from the replica works, I don't think you have anything to worry about.

The CD full of scans is another matter, however; in all likelihood, it'll be sold with a user agreement forbidding you from putting the stuff online. If you break the terms of that agreement, you can be found liable of breach of contract. There's a case more or less about this exact issue--Pro CD v. Zeidenberg. So if you want to buy scans, keep an eye out for TOS.

Posted by Riana at Sat Apr 12 2008 19:56

Editorial work - choosing what to leave in and what to leave out, and in what order to put things - is a big part of determining the copyrightability of collections, lists, and stuff that otherwise would just be uncopyrightable facts. Editorial choices display the minimum modicum of creativity that is crucial to copyrightability. See The Trade-Mark Cases.

A compilation of works can be given a copyright quite apart from the individual copyrights on the works or the individual works' uncopyrightability in themselves, although the copyright may be "thin." See Feist Publications v. Rural Telephone Services.

This situation is a little odd to me since you're talking about recopyrighting stuff that's fallen into the public domain (are the catalogs all pre-1923?) by picking and choosing how to reassemble them as facsimiles. I'm sure it's not that odd and happens all the time, but it's just a little new to me. So, being ignorant of the happens-all-the-time instances, I'm going to say yes, you can get a copyright by assembling public domain items into a new compilation, but it'll be a "thin" copyright and you can't stop people from using the public domain elements; you can only stop them from reproducing the compilation you made, exactly as you made it, since they're copying the fruits of your editorial decisions.

It doesn't matter that it's a derivative work: the copyright owner has the sole right to make derivative works, but since the copyright expired, it's okay to make the facsimile. So anybody can make a "derivative work" of public domain stuff. Like Rosencrantz and Guildenstern Are Dead, or Clueless, or Jesus Christ Superstar, etc. etc. etc.

So uh, in sum, I think you could copyright old, public domain stuff by sticking them into a compilation and exercising a modicum of creativity through your editorial decisions about what to include and in what arrangement.

And since "you" here is whoever already made the facsimile, I'm thinking it might not be okay for you to buy a facsimile, scan the pages, and put the scans online, faithfully reproducing the facsimile. The person who made the facsimile may have a copyright, albeit thin, in the compilation, so reproducing the facsimile through online scans might infringe the facsimile maker's right to make derivative works.

But then again, it might be okay so long as you're not copying the fruits of the editorial decisions. The individual bits are public domain, and you can do whatever you want with those. You just can't copy the whole thing just the way the facsimile maker decided to assemble it. Since the copyright is going to be thin, I think you can get away with making individual scans and arranging them some other way. This will be tricky, though, if the pages of the catalog are meant to be presented in a certain order, and your mixing them up screws up that order. But it sounds like they at least to some extent can stand on their own since the facsimiles are already incomplete, and it's that incompleteness that might give the facsimile maker a copyright.

That would be different from New York Times v. Tasini, which held that removing individually-copyrighted works from their context as part of a collective work, in which a separate copyright was held by NYT, and placing them into searchable databases as separate files goes beyond the collective copyright owner's 17 U.S.C. ยง 201(c) privilege. The difference is that the individual works in the collection are public domain, not under copyright.

Just plain leaving stuff out might actually not be enough to get even a thin copyright. I'm not sure about that one, actually. Usually editorial work entails more than just cutting. There's the rub.

ObDisclaimer: I could be totally wrong about every single thing I've said, and none of this is legal advice anyway.

Posted by Riana at Sat Apr 12 2008 19:58

Thanks, Jake.

Screw ProCD: it's an attempt to expand rights beyond what rights are granted in the copyright law, by using contract law. It's a dirty low trick. But ProCD is the law. At least in the 7th Circuit.

Posted by Leonard at Sat Apr 12 2008 21:33

So it sounds like I should bite the Malamud-esque bullet and spend $250 on an original catalog and make my own damn derivative work.

Posted by Leonard at Sat Apr 12 2008 22:54

So, Riana, another question. If I got a number of facsimiles covering different chunks of pages, and attempted to assemble them into a complete facsimile of the book, I'd be undoing the editorial work that's the basis of the 'thin' copyright. Would that be as good as rearranging the scans?

Posted by Jake at Sat Apr 12 2008 23:27

Arranging the pages in the original order would be legal in TWO ways. 1) It would be emulating the editorial choices of the original, public domain work; and 2) editing choices that don't have a modicum of creativity, e.g., in regular page order, aren't copyrightable.

So in my (nonprofessional, non-liable-for-malpractice!) opinion, that ought to be perfectly fine.

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