RE: Photographing purchased objects

[Karen Kunz <Karen.Kunz@xxxxxxx>]

First of all, I would like to thank everyone for their help in "brainstorming"
about this situation. I'm finding the questions and comments to be very
helpful.

Second, I'd like to clarify a few points that have been raised.

About the document: The instructor says that she has used bone models from
various vendors to create the document. The models are the casts of the bones
without any discernable additions (I haven't seen the actual models myself --
just the document). The models were placed on a dark background and photos
made of them. The photos were inserted into a document and text added to name
components of the bones.

I know that since the instructor created the photos and the document that
copyright for them resides with her (or the institution). And as long as the
documents were limited to her students, I felt confident that fair use would
prevail. What I am uncertain about is whether there would be a problem with
selling to the public pictures of the original models. Would the documents be
considered transformative? Are the models themselves copyrighted or are they
common and factual enough to consider them not copyrightable?

I like Janet's idea of at least checking to see if there was any paperwork
with the models that might help answer a few questions about them. I'm not
holding my breath that the department kept anything though. The instructor has
already told me that there are too many vendors for her to want to contact all
of them -- but perhaps looking for information on the Internet would work as
well -- provided she knows the name of all the vendors.

At any rate, this discussion has helped me gain a better perspective and I
thank all of you for your comments.


Karen



Karen Kunz
Access Services & Systems Librarian
Oregon Institute of Technology Libraries
email: karen.kunz@xxxxxxx



-----Original Message-----
From: Croft, Janet B. [mailto:jbcroft@xxxxxx]
Sent: Tuesday, December 15, 2009 6:45 AM
To: Bryan Carson; Kevin Hawkins
Cc: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Photographing purchased objects

I think we don't have enough details on the models themselves.  Are they
pretty much simply casts of existing bones?  Or are they like some classroom
models I have seen, with features painted to bring out details, cut-away
views, depictions of healthy and unhealthy tissue side-by-side, and so on?
That would make a difference as to whether they could be considered original,
copyrighted creative work (sculptures) or not.

Janet Brennan Croft
Associate Professor
Head of Access Services
University of Oklahoma Libraries
Bizzell 104NW
Norman OK 73019
405-325-1918
Fax 405-325-7618
jbcroft@xxxxxx
http://faculty-staff.ou.edu/C/Janet.B.Croft-1/
http://libraries.ou.edu/
Editor of Mythlore http://www.mythsoc.org/mythlore.html
Book Review Editor of Oklahoma Librarian
http://www.oklibs.org/oklibrarian/current/index.html
"Humans need fantasy to be human. To be the place where the rising ape meets
the falling angel." -Terry Pratchett

-----Original Message-----
From: Bryan Carson [mailto:bryan.m.carson@xxxxxxxxx]
Sent: Monday, December 14, 2009 10:12 PM
To: Kevin Hawkins
Cc: digital-copyright@xxxxxxxxxxxxxx
Subject: Re: Photographing purchased objects

I'm going to both agree and disagree. First, I agree with Kevin's
statement that
> There are a couple of items we need to distinguish here:
> a) 3-D models of real bones
> b) the original photographs of the 3-D models
> c) handouts of the photographs
That sounds like a good summary of the issues. Second, I agree with the
following statement:
> First of all, non-textual works like photographs, paintings, and
> architectural plans are eligible for copyright protection.  The
> question is the extent of the creativity involved in creating them.
I was sloppy in my initial statement that the bones are "not writing,"
which incorrectly implied that only "writing" is protected.
(Unacceptably sloppy.) Needless to say, 17 U.S.C. ' 102 applies
copyright to the following types of items:
> (1) literary works;
> (2) musical works, including any accompanying words;
> (3) dramatic works, including any accompanying music;
> (4) pantomimes and choreographic works;
> (5) pictorial, graphic, and sculptural works;
> (6) motion pictures and other audiovisual works;
> (7) sound recordings; and
> (8) architectural works.
However, I do not agree that the bones would be protected by copyright
because they do not fit within any of these categories. Models can be
protected, but not if they are factual (which these clearly are) and do
not exhibit creativity. That is why I don't believe that the bones are
subject to copyright. (On the other hand, if they were bones of an alien
from Mars. . . .)

Finally, by coincidence today I read about a 7th Circuit case last week
that discussed photographs of three-dimensional objects, indicating that
there is "deep disagreement" over whether the photographs are themselves
derivative work. The case was Daniel Schrock, et al. v. Learning Curve
International, et al., 2009 U.S. App. LEXIS 24253; 92 U.S.P.Q.2D (BNA)
1694; Copy. L. Rep. (CCH) P29,833 (November 5, 2009). It had the
following language:
>  Whether photographs of a copyrighted work are derivative works is the
> subject of deep disagreement among courts and commentators alike. See
> 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT ' 3.03[C][1],
> at 3-20.3 (Aug. 2009). The district court held that Schrock's photos
> came within the definition of derivative works because they "recast,
> transformed, or adapted" the three-dimensional toys into a different,
> two-dimensional medium. For this conclusion the judge relied in part
> on language in Gracen and in the Ninth Circuit's decision in Ets-Hokin
> v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000), recognizing,
> however, that neither decision directly decided the matter. Gracen did
> not involve photographs at all, and although Ets-Hokin did, the Ninth
> Circuit ultimately sidestepped the derivative-works question and
> rested its decision on other grounds. Id. at 1081.
>
> The judge also cited other decisions in this circuit that appear to
> support the conclusion that photographs are derivative works, but
> these, too (and again, as the judge properly acknowledged), did not
> directly address the question. Ty, Inc. v. Publ'ns Int'l., 292 F.3d
> 512, 519 (7th Cir. 2002), involved unauthorized "Beanie Babies"
> collector's guides that incorporated photographs of the popular
> beanbag plush toys into the text. We said there that "photographs of
> Beanie Babies are derivative works from the copyrighted Beanie Babies
> themselves," but this statement was based entirely on the parties'
> concession that the photographs were derivative works. Id. Saturday
> Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191 (7th Cir.
> 1987), made a passing remark suggesting that photographs of Norman
> Rockwell illustrations were derivative works, but that was not an
> issue in the case, id. at 1201; the issue instead was whether certain
> terms in a licensing agreement (specifically, no-contest and
> arbitration clauses) were enforceable, id. at 1193.
I haven't tracked down the the citations in the opinion (in my copious
lack-of-spare-time), but this may be an interesting line of inquiry to
pursue.

Bryan

--
Bryan M. Carson, J.D., M.I.L.S., Ed.D.
Special Assistant to the Dean for Grants & Projects/ Coordinator of Reference
& Instructional Services Western Kentucky University Libraries Author, "The
Law of Libraries and Archives" (Scarecrow Press)

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All original content copyright 2009 Bryan M. Carson