Tuesday, January 4, 2011

What is Copyright? Part 4

What can you protect under copyright law?

In the last blog entry I left you with the question -- You are wondering in the Judea Dessert and you find a scroll that turns out to be the work of a previously unknown prophet. What are the copyright issues?

This is the story of the Dead Sea Scrolls. But I am only discussing copyright issues here and what can be protected. [1]

The US Constitution gives Congress the obligation to create laws to protect intellectual property. “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” [2] This, however, creates two competing social needs –1) The right of the public to use and learn from the knowledge of the past and present; and 2) The right of the authors and publishers to benefit from the fruits of their labor and capital investment. Public policy is at the heart of copyright legislation and common law.

Since the Constitution clearly mentions “authors” and “inventors” examination of what is an author is worthwhile. [3] An “author” of a work is the creator of the work. Authorship can be shared by individuals or corporate bodies. “Creation” implies that the work shows some creativity. For some works “authorship” is very obvious. If an individual writes a book and the publisher puts the name under a by line on the title page, the author is obvious and indisputable. Well, perhaps not? The Hardy Boys and Nancy Drew books were attributed to Franklin W. Dixon [4] and Carolyn Keene [5], respectively. These were series books written from character and plot outlines provided by the Stratemeyer Syndicate. The publishers even prevailed on Library of Congress not to reveal the names of the individual authors. The actual creators sold the stories for as little as $125 per book. The publishers retained the copyright. Creators are allowed to sell or assign their copyrights to other persons or corporate bodies. A person can choose to write a work under a pseudonym for any of several reasons. That does not detract from their part in the creation of the work.

Corporate bodies can also be authors. An organization, government agency, business, etc. can prepare a publication. The work is prepared by many individuals who may or may not be named. A name is very important for a person and for cataloging works that will be included library catalogs. The rules for library cataloging (AACR2) devote two chapters to help librarians assign proper headings for personal and corporate names.

Peter Jaszi claims that authorship is one of the fundamental concepts of copyright doctrine. [6] He says that the concept of “author” in the 18th century was associated with the Romantic movement in art and literature. The concept and value of the self was gaining importance. The American Revolution and Construction were part of the results of important of self determination and inalienable rights.

Before printing the idea of authorship is somewhat limited. Many of the Psalms are attributed to King David. Other books of the Bible are attributed to authors, but this does not mean they were the individual authors as we call authors today. Was Homer, Aristotle, or Plato the name or an individual who wrote books? Homer dates of existence are not certain and vary by as much as 300 years. The dates for works attributed to him also vary by hundreds of years. The Greeks considered his their teacher and attributed works to him. He was a collector of stories and traditions.

Aristotle was a poet, philosopher theoretician. Plato was his teacher. Their philosophy was known to the rabbis of the Talmud. Greek literature had no concept of “fiction” or work of imagination. They had philosophy, “wisdom” and “authoritative knowledge.”

Betzalel was the artisan commanded by God to build the tabernacle. His skill and genius was highly respected, but he only carried out orders. He is not a creator of an original work.

At one time photographs were not considered works of art and could not be protected with a copyright. The law was changed to recognize photographers as creators.

The word “science” today refers to fields such as chemistry, physics and biology that are different from the fields of literature, history, philosophy that are the “humanities.” In the time of the Constitution, “natural philosophy” was used for what we call the above sciences. If we take the meaning of the Constitution into 21st century usage, “science” refers to the domain of technology and process while “art” refers to works that are recorded, written, sounded, printed, or displayed. They have some physical manifestation including computer codes and visual displays.

The threshold for copyright is low when compared to patents. Both are legislated monopolies protecting intellectual property and the investment of time and capital to sell and distribute the works. Patents have to prove they are innovative; copyright has no such requirement. The work does need creativity and originally. Betzalel and other builders with all their skill and time are not considered creative or original. They can not hold a copyright on their buildings.

If one copies a geometric form or a computer program creates a geometric form lacks originality. A simple drawing of a circle lacks creativity. However, a figure with five circles, each a different color is the Olympic symbol and is protected by trademark law.

Consider the following cases

1. Inspiration. Michael Neuman loves archeology and is inspired on a visit to Masada and Qumron to write a story based on the events of time when the scroll MMT was created. He invents all of the characters and dialog.

2. New Psalm. In his epic novel based on the life and times of King David, Ya’akov Bar-Nof writes a poem in the style of the Biblical Psalm.

3. New Translation. Rabbi Yosef Klein does like the exact translation of the MMT he read in Biblical Archeology Review. Going back to the original Hebrew, he creates his own translation and includes notes explaining the translation.

All of these works, a story, a psalm within a novel, and translation are protected by copyright from the moment they are in fixed form. Assuming satisfaction of any legal requirements, they are entitled to the full term of protection. Authorship of these works is clear.

The following cases are revised from David Nimmer’s article mention in note 1.

4. The fountain. In Almodovar del Rio, Spain a fountain was unable to be used from 1492 until 2010. After the Moslem and Jewish subjects were expelled no one was left who could understand the complex machinery. In 2010 M.C.A Wassermann succeeded in restarting the fountain. Does Wasserman have a copyright to a flowing fountain?

5. The atom. Everyone is familiar with the depiction of an atom with electrons flying round a nucleus. This miniature solar system design is based on the model developed by Sir Ernest Rutherford in about 1911. Does Rutherford have a copyright on the design?

6. The phone book. A local phone company decides to make the phone directory that takes into account rules of library name authority. The company has references to take care of alternative spellings, hyphenated names, foreign names and other surname variants that no phone company ever listed. The names are in alphabetical order according to library rules, not computer rules. The company calls the directory “a work of art.” Is this a work of art? Does it deserve copyright protection?

7. The skeleton. A gifted paleontologist excavates a complete skeleton of an Apatosaurus. She assembles the skeleton in a way that was not the same as previous skeletons. Casts were made of each bone. A rival paleontologist assembles the bones in a slightly different way. Can the first paleontologist claim copyright and sue the second?

8. Composite work. An artist takes two pictures from the motion picture, The Wizard of Oz and combines them into a single image that never existed in the motion picture. Is the result protected? Can the artist be considered the author?

Commentary on the Cases

In Case 4 Wasserman used considerable expertise and ingenuity in the fields of hydrology, architecture, history and archeology to repair the fountain. While he succeeded where others had failed and he restored someone else’s creation, he is not the creator and not entitled to copyright protection.

Case 5. Rutherford, who was awarded the Nobel Prize in Chemistry 1908, clearly made original and valuable contributions to the understanding of atom. He could secure a copyright protection over drawing the contained shading or coloring of an atom claiming it is graphic art. Another person could make another representation of atomic structure with spheres and orbits that does not infringe on his copyright. One can make a photograph, drawing or other graphic and copyright the artistic features, but not the structure itself. Two people could take pictures of the same sunset. They could both claim copyright protection only on their work, not the underlying landscape. The Rutherford case is moot, because any his works are now in the public domain.

Case 6 is similar to Feist Publication, Inc v. Rural Telephone Service Co. [7] Justice Sandra O’Connor, writing for a unanimous U.S. Supreme Court held that while a telephone director could contain introductions and other copyrightable materials, the alphabetical arrangement of names and numbers is not entitled to protection because a listing does not meet any requirement of originality. It is admirable that a phone company pays attentions to some of the concepts of name authority. This effort should appreciated by those using the directory, but it is not subjective or creative. Likewise making a directory of anything using objective criteria is not copyrightable, but using subjective criteria is protectable. For example a list of all businesses on Main Street is not creative, but a list of your favorite restaurants can be protected.

Justice O’Connor further stated, “The “sweat of the brow” doctrine had numerous flaws.” Copyright protection is only granted to material beyond the arrangement of information.

A shopping list of things you need from the store is neither creative nor original. [8] But if a list is part of your novel, it is protected.

Case 7. Although sculptures are protected by copyright, reconstructions are objective based on her knowledge of bones and anatomy. Her reconstruction could be challenged by another scholar. She did not choose materials or shapes. Since no subjective decisions were made, there is no copyright protection.

Case 8. This is the case of Gracen v. Bradford Exchange [9] Jorie Gracen created a painting of Dorothy superimposed over the Yellow Brick Road. The Court ruled her painting was derivative, lacked originality; therefore her copyright registration was invalid. The right to use images from The Wizard of Oz was not disputed as Gracen was authorized. The Court ruled that for a valid copyright, “a derivative work must be substantially different from the underlying work to be copyrightable.”

We have two criteria for copyright creativity and originality and the need for an author. The lack of one or the other would invalidate a copyright registration. Returning to the Dead Sea Scrolls—can a reconstruction be protected? Can a commentary or translation of the texts be protected?

Similar to the cases of the reconstructed fountain and Betzalel making the Tabernacle, the act of construction, repair or reconstruction is not a copyrightable event. No matter how long or what skills are required, the repair person has not met the criteria of authorship or creativity. They are trying to return the object to what someone else wrote, created, or designed. Translations and commentary are original and can be protected.

If you find an ancient text you can study it, translate it and comment on it and receive protection for your creative work. However, the text represents some challenges. Before 1978 works that were not published were protected by common law copyright. Once published, they needed to follow the law for protection that includes registration and a copyright claim in the work. Since the authors are long dead and the descendants are unknown, no one is going to claim to own the copyright on the text.

There are still more questions to be answered concerning authorship and public domain, but that is material for another column.


1. For the full story read David Nimmer, “Copyright in the Dead Sea Scrolls (Houston Law Review 38:1 2001) and the articles by Hershel Shanks in Biblical Archeology Review, such as “60 Years with the Dead Sea Scrolls” (May/Jun2007, Vol. 33 Issue 3), Shanks also covers the topic in chapter 4 “Freeing the scrolls” in his book, The mystery and meaning of the Dead Sea Scrolls (New York : Vintage Books, 1998)

Shanks lost his suit against Elisha Qimron, but he won in the court of public opinion. Shanks published reconstructions of a document from the Dead Sea Scrolls known as 4QMMT. (4Q is the fourth cave in Qumran. MMT is the abbreviation usually used. It means Miqsat Ma’ase ha-Torah or Some Precepts of the Law. It is also referred to as the Halakhic letter. )

For the responses to Nimmer’s article see: “The Dead Sea Scrolls: a live copyright controversy” / Jams L. Oakes. http://www.houstonlawreview.org/archive/downloads/38-1_pdf/HLR38P219.pdf and “Response to David Nimmer / Martha Woodmansee http://www.houstonlawreview.org/archive/downloads/38-1_pdf/HLR38P231.pdf Both are from the Houston Law Review 38 2001.

2. U.S. Constitution Article I, Section 8. Capitalization is from the original.

3. The idea of authorship under law is not the same under all jurisdictions. American law and Jewish law are very close in their understanding while French and German laws take a different philosophical view. That discussion is a topic for another paper.

4. Leslie McFarlane (1902-1977) wrote many of the books as works for hire. For more information see “Who wrote the Hardy Boys? : secrets from the [Stratemeyer] Syndicate files revealed” by James D. Keeline http://www.keeline.com/Hardy_Boys.pdf

5. Millie Benson, 1906-2002, write 23 of the first 30 books. http://articles.cnn.com/2002-05-29/entertainment/obit.benson_1_millie-benson-carolyn-keene-original-nancy-drew?_s=PM:SHOWBIZ

6. “Toward a theory of copyright: the metamorphoses of “authorship”” in Duke Law Journal 455 1991.

7. 499 U.S. 340 (1991) http://www.law.cornell.edu/copyright/cases/499_US_340.htm This case overturned a lower court decision.

8. In Copyright’s highway by Paul Goldstein (Stanford University Press, 2003) on page 13 Professor Goldstein disagrees with me and David Nimmer. He is mistaken.

9. 698 F.2d 300 (7th Cir. 1983) http://www.tabberone.com/Trademarks/CourtCases/7thCircuitCOA/GracenVsBradfordExchange.shtml Jorie Gracen won a contest for the best painting of Judy Garland as Dorothy in The Wizard of Oz. She sued the Bradford Exchange for using the likeness on porcelain plates.

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