The Inevitable River

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by · · Posted in: musings · photography business

I've written previously about museums locking up public domain works. Last week an interesting case bubbled to the surface—one might say it materialized spontaneously in the fabric of space-time, but more on that later. In this case the National Portrait Gallery, London is threatening to sue Derrick Coetzee for uploading a bunch of high resolution images (of public domain works) from the Gallery's website to Wikipedia. If this case was entirely contained within the borders of the U.S. it would be a nonstarter. Despite the time, money, or skill required to create photo reproductions of art, they don't meet the creative requirements for copyright protection under US law. We call them slavish copies. The goal of photographers in the case of photographic reproduction is to minimize to as close to zero as possible their creative stamp on the work. You can't copyright photo-reproductions any more than you can copyright the fruits of your efforts sweating over the xerox machine. The digital backs most art photographers use are not much different than very expensive scanners attached to a large format camera. But not so in the UK where they have a concept called the 'sweat of the brow'—if you put labour and skill into something, you can claim unfair use when somebody appropriates it for themselves, regardless of the amount of creativity or originality involved. In many instances this is a reasonable stance as well, which is what makes this an interesting dilemma. Mr. Coetzee, being in the U.S., could probably just tell the National Portrait Gallery to stick it in their bangers & mash, eat some spotted dick and bugger off, but he has attracted the largess of Fred von Lohmann, a Senior Staff Attorney at the Electronic Frontier Foundation, who will be representing him pro bono. It looks like the National Portrait Gallery might have a fight on its hands. Lets hope so because the more of these sorts of cases that make it into the courtroom, the better we will understand how courts will apply copyright when it comes to reproducing the public domain.

All this is fine and interesting, but there is countless analysis of this issue already all based on one cease and desist letter. Wouldn't it be a bit more interesting to look at some of the fringe cases surrounding the issue? When the National Portrait Gallery claims a new copyright on photos of public domain works it naturally leads to some very important legal questions such as: what if you are simply making slavish copies of text dictated from a supernatural being like, say Jesus? Sure chuckle if you want, but Penguin Books wasn't laughing when they sued New Christian Church Of Full Endeavor, Ltd., And Endeavor Academy for distributing A Course in Miracles freely without their permission. The judge in the case, Robert W. Sweet (known for his dismissal of the chubby kids who sued McDonalds for making them thus), describes the work:

The Course can loosely be categorized as belonging to that genre of "New Age" spiritual texts which seem to pop out of the post-industrial cultures of the northern hemisphere like the quarks which particle physicists tell us materialize spontaneously in the fabric of space-time.

The New Christian Church pointed to Dr. Helen Schucman's claims that she simply transcribe the work from a voice she identified as Jesus and therefore could not claim authorship under copyright law. The court demurred:

As a matter of law, dictation from a non-human source should not be a bar to copyright.

Incidentally, A Course in Miracles was registered with the Copyright Office instigated by the voice from above, who clearly has good I.P. consultants:

None of us was prepared, however, for one particular instruction from Jesus to Helen Schucman, scribe of the Course. He wanted A Course in Miracles copyrighted and, she stated emphatically, he was quite adamant about this.

The findings in this case point to another: Urantia Foundation v. Kristen Maaherra :

This is a copyright dispute between parties who believe the copyrighted work, the Urantia Book, was authored by celestial beings and transcribed, compiled and collected by mere mortals. Both parties believe that the words in the Book were "authored" by non-human spiritual beings described in terms such as the Divine Counselor, the Chief of the Corps of Superuniverse Personalities, and the Chief of the Archangels of Nebadon

The 9th circuit Court of Appeals found a sliver of creativity in the transcription and arrangement of the text on which to hang a copyright thus avoiding dealing with the Divine Counselor and his various Chiefs. They also set a fairly low standard when it comes to the creative requirements in obtaining a copyright when transcribing the work of extra terrestrial beings:

In this case, the Contact Commission may have received some guidance from celestial beings when the Commission posed the questions, but the members of the Contact Commission chose and formulated the specific questions asked. These questions materially contributed to the structure of the Papers, to the arrangement of the revelations in each Paper, and to the organization and order in which the Papers followed one another. We hold that the human selection and arrangement of the revelations in this case could not have been so "mechanical or routine as to require no creativity whatsoever."

(quoting the landmark Supreme Court case Feist v. Rural in which the sweat of the brow doctrine was invalidated in the U.S.)

And lest you think the Urantia Book a work for hire the court noted:

The Foundation was never the employer of any of the spiritual beings

If you're looking for some supernatural guidance yourself, try

The old chestnut of these cases is the English case Cummins v. Bond. At issue: who owns the copyright of Chronicles of Cleophas, which all parties agree was dictated by a spirit to a medium during a seance. The judge, perhaps channeling a bit himself, produced the lovely and often quoted passage in his opinion:

The conclusion which the defendant invites me to come to in this submission involves the expression of an opinion I am not prepared to make, that the authorship and copyright rest with some one already domiciled on the other side of the inevitable river. That is a matter I must leave for solution by others more competent to decide than me."

Although the case with the National Portrait Gallery may be more important than the above, I doubt it can be more entertaining. If you still haven't had enough, you can contribute to the discussion concerning copyright of paintings by a chimpanzee on wikipedia