Question: public domain through copyright shield?

This is the fourth of my questions to the copyright lawyers, a taciturn lot judged by the results so far: is it possible to create a public domain image based on copyrighted sources?

Here’s the idea: suppose I take five different, recent photos from Michelangelo’s David. These photos are likely copyrighted, following the doctrine from Bridgeman v. Corel and similar European cases. Then, I use a tool like Photomodeller to recreate a 3D-model that is as close a reproduction of the original as possible. Bridgeman v. Corel holds that a faithful reproduction of a public domain work is “sweat of the brow”, lacking originality, and is not burdened by copyrights. But does that theory hold for a reproduction that was based entirely on copyrighted works?

Previous questions:

1. Why does a work published after the death of an author receive a copyright? (answer)
2. How can SNTE (the firm that maintains and exploits the Eiffel tower) claim a copyright on the image of the illuminated Eiffel tower when the Paris Hotel in Las Vegas has had a very similar lighted Eiffel tower since two years before?
3. What rights does Microsoft base it’s licenses for protocols on?
(2+3 as yet unanswered)

To be extra clear, I am not solliciting advice, I am solliciting opinion.

4 responses to “Question: public domain through copyright shield?”

  1. brankl says:

    Some jurisprudence may be coming up in this regard. A company is recreating cricket matches using machinima and tv or radio reports of these matches. Based on the descriptions of a match, the match is rebuilt as a computer animation.

    The Outlaw.com article describing this case talks about an earlier event in which the BBC had a painting commissioned of a photo it wasn’t allowed to print. Oddly enough, the photo was political commentary, so that even if the publication of the photo were copyright infringment, it should either have been allowed as some sort of fair dealing, or some E.U. freedom of speech provision should have trumped it.

    Compare the Karin Spaink case, in which the court found that though the republishing of the Fishman Affadavit may have been copyright infringement, she had a right to publish them under article 10 of the European Convention on Human Rights. The idea being that in this case it was more important to publish protected speech (in order to out the Church of Scientology for the evil organisation it is) than to censor that speech through copyright law.

  2. Intriguing. You infringe a copyright if your reproduction contains one or more creative elements from the original. It’s thus permissible to cut down a copyrighted work to only the functional or public-domain parts. Suppose I have an annotated version of a public domain text. I can remove the annotations and do with the remainder what I want.

    Following this principle I can use copyrighted photos to make a faithful reproduction of a public domain statue.

    I would not rely on the Fishman case here. That case relied on the argument that politicial speech deserves high protection, trumping copyright. For a statue I don’t see how that applies. What important social or political criticism do you provide by reconstructing a statue?

  3. Imagine a statue that was erected to remember the atrocious deeds of a former government, and the current government wants to glorify this former government for political reasons and decides to tone down all reports of the atrocious deeds by removing, amongst others, the statue. You decide to recreate and sell a miniature of the PD statue, but the only source you have are photos. Political speech, especially unpopular political speech, is a category of the most protected speech (except in the Netherlands, where you can get arrested for pointing to the fact that a certain politician with a toilet brush-shaped hairdo is an extremist).

  4. Like I said, if you can remove the mark of the author from the photos you use in the reconstruction, you have a public domain reconstruction. I don’t see any theoretical problem there.

    The Fishman case showed that sometimes an infringement of copyright can be excused when it’s done for political speech. This is different from reconstructing a public domain statue from copyrighted photos. In the first case, you infringe a copyright but you’re excused. In the second case you don’t infringe a copyright in the first place.

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