This post is a continuation of the discussion in my last post, Can I obtain a copyright of a copy of an old document? The commentary is directed at websites that claim copyrights to digitized images of old documents of interest to genealogists, such as U.S. Census records, wills, deeds, maps and other such items. Let's suppose that as an attorney, I have read all the copyright cases concerning copies of documents in the public domain and a prospective client comes to me and says, I have several thousand (or a million or so) old documents that I want to scan and put online. Can I get copyright protection for my work?
In this case, as the attorney, I rock back in my chair and give the client a brief synopsis of the U.S. law on copyrights, and end by telling him or her that a copy of a public domain document cannot receive copyright protection. So then the client says to me, "We can't afford to put all our stuff online unless we have some kind of protection. What do we need to do to make the documents subject to copyright?" Now, what would I say to that? In my case, I would probably tell the client to go to some other attorney. But in reality, the answer is to add originality to the documents. Can I edit the documents in some way that will cause them to be subject to copyright protection?
Let's step back a half step, compilations of facts (copies of documents) can be protected by copyright to the extent that they embody some independently original selection and arrangement. The principle here is that the document itself is not subject to copyright, but the way in which the documents are presented or arranged may be. Now, this isn't really a problem for my prospective client, he or she is not trying to copy anyone's website or the arrangement of their database. What is the question is whether the document itself can be changed enough to become and "original." Given the present state of the law in the U.S., I would have the opinion that despite any cosmetic changes to the online document, the document remains a copy of the original and would not be subject to copyright protection in favor of the online provider.
This position of the law has not prevented people and companies from running to the courts alleging copyright protection. As stated in the case of Peter Letterese and Associates, Inc. v. World Institute of Scientology Enterprises, 533 F.3d 1287 (2008) "copyright in a factual compilation is “thin” in the sense that the protective scope of the copyright extends only to certain elements, namely, the creative and original selection, arrangement, and coordination of the compilation, and not to the underlying facts or ideas." In this statement of law, there is plenty of room for argument over what constitutes the selection and arrangement.
No matter how hard the claimants try, copyright will not extend to the parts of the online documents that were not created by the entity or individual claiming the copyright. So, an online database may be able to add annotations and explanations to the images which would be subject to copyright, but not claim a copyright to the underlying image itself. Now back to the original question, can I edit the document in some way as to make the copy subject to copyright? Possibly. The creativity bar has been set extremely low, as the cases reflect. In reality, the online companies are not really likely to be worried about whether or not someone uses a digital copy of one of the documents they have online, their real worry (should be) wholesale appropriation of the images by competitors.
So, as a online entity, I acquire this old deed that is so discolored by age and water damage as to be almost unreadable. Using my fabulous computer technology and digital imaging, I make a highly readable copy of the original. Do I now have copyright protection to my cleaned up copy? There are a few U.S. Federal cases that relate to this question. In the case of Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (1992), the Court held, "Many works are compilations of original copyrighted material and public domain materials. A casebook, for example, is a compilation of judicial opinions, which are not copyrightable, and of the casebook author's notes and commentary, which are. A copier of the casebook would infringe both the copyright in the original material (i.e., the notes and commentary) and the copyright in the compilation itself-the ordering and editing of the opinions. Callaghan v. Myers, 128 U.S. 617, 649-50, 9 S.Ct. 177, 185, 32 L.Ed. 547 (1888) Schiller's catalog would be a clear example of this sort of dual work if Schiller had owned the copyright on Bertel's 18 photos (or on any of the other photos), since Nordisco copied them along with the compilational features of the catalog. Schiller did not own the copyrights on any of the photos in the catalog, but the catalog contained other material that was original-the layouts of the product photographs."
Essentially what the courts are holding is that in order to recognize the existence of a copyright in the edited works, the copies must qualify as derivitive works. In Spilman v. Mosby-Yearbook, Inc., 115 F.Supp.2d 148 (2000), the court says, "To qualify as derivative works, Spilman must have made original contributions that in some way distinguish his publications from the underlying work. See M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 438 (4th Cir.1986) (requiring the new material demonstrate a “faint trace of originality” and “a distinguishable variation” from the prior work) (citations and quotations omitted); 1 Nimmer on Copyright § 3.03[A], at 3-12 (“Any variation will not suffice, but one that is sufficient to render the derivative work distinguishable from its prior work in a meaningful manner will be sufficient.”). Only the original portions of a derivative work can be copyrighted. See Stewart v. Abend, 495 U.S. 207, 233, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (stating that an author may copyright a novel that contains story elements found in the public domain but only his original contributions are entitled to protection); Waldman Publ'g Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir.1994) (“In the case of a derivative work based on an underlying work in the public domain, only the material added to the underlying works is protected by copyright.”)."
A decision on whether or not the changes made to the documents were sufficient to invoke copyright protection might wait until the issue was brought before a Federal Court. If you are in a position of putting old documents online, this is risk you will have to take.