Question for intellectual-property specialists

[A18]

A hypothetical:

In 1920, John Doe publishes A Biography of Bob Smith, and in 1935 he publishes a second edition. The former is now in the public domain; the latter is not.

Now as it turns out, the second edition is virtually identical to the first edition. The newer one simply excises superfluous and redundant material, expands a quotation or two, and occasionally replaces one word with another.

In 2006, a publisher releases a new edition of A Biography of Bob Smith, the text of which is identical to the second (1935) edition. When sued, the publisher argues: (a) that the mere deletion of certain material cannot be copyrighted; (b) that expanded quotations of another author's work are likewise beside the point; and (c) that the other changes are so trivial that the publisher should be able to incorporate them under principles of "fair use."

How would these arguments fare in court?

[J. J.]

"expands a quotation or two, and occasionally replaces one word with another."

I think this would make a difference.

[○∙◄☻¥tπ[╪AV┼cVê└]

The 11th edition of your textbook is going to enter the public domain after the 10th edition. I think that answers your question.

[A18]

No; that wasn't the question at all. My question is what new "features" of this second edition would be copyrightable, and whether they might nonetheless be incorporated under the principles of fair use.

[J. J.]

No; that wasn't the question at all. My question is what new "features" of this second edition would be copyrightable, and whether they might nonetheless be incorporated under the principles of fair use.

The only one that I'm familiar with is a reference book.  The 1915 edition is out of copyright.  The 1943 edition is in copyright; it is actually the Robert's Rules series.  The material in the 1943 edition includes some minor changes.

The 1915 edition is up on the Internet.  The 1943, 1951, 1970, 1981, 1990, and 2000 editions are not.  There was also a verbatim reprint of the 1893 edition, with a commentary section.  I think that was done in 1971.  The 1893 edition, I think, could reprinted without payment, but I couldn't use the reprint under fair use.

I think the whole new text is subject to copyright, but where it is the same, you can copy or post the earlier edition.

[True Federalist (진정한 연방 주의자)]

Under any reasonable interpretation of the "limited Times" requirement of the Constitution, a copyright once granted should not be eligible to be lengthened, so the 1935 version of A Biography of Bob Smith should have entered the public domain in 1991 at the latest.  Indeed, it may have entered the public domain in 1963 if the copyright was not renewed in accordance with the copyright law in effect at the time.

Alas, the Supreme Court has not had a reasonable interpretation of the "limited Times" requirement, but at least the work in question would be in the public domain if the copyright was not renewed in 1962-3.

But back to the original question.  The decision as to what to delete is a creative decision that is covered under copyright law, so while the differences are minor the 1935 version could not be copied verbatim as a unoriginal "sweat of the brow" revision of the 1920 version.  However, one could use the 1920 version as the basis and make revisions that are of the same type as the 1935 version but not exactly the same as those of the 1935 version, even if some but not all of the differences between the 1920 and 1935 versions are also differences between the 1920 and 2010 versions.

[A18]

Thanks for the response. Could I get a citation or two?

[pbrower2a]

Any material that has gone out of copyright cannot be placed back in copyright due to later tweaks. Thus if the Encyclopedia Britannica contains material in it from the 1911 edition, the original material from the 1911 edition is still in the public domain. A verbatim graft of the 1911 edition onto one's own material  is not a violation of copyright law, although  intellectual integrity requires that one cite the source.  It is likely that the material has since been tweaked and expanded. Minor tweaks, like modernizations in spelling (such as today for to-day) or identification of place names (like recognizing that Immanuel Kant was born in what is now Kaliningrad the Kaliningrad Oblast of the Russian Federation instead of what was in the time of Kant the city of Koenigsberg in  the Prussian Empire) are so obvious that they are not violations of copyright.  A mechanical or nearly-mechanical process, like the re-setting of type, does not create newly-copyrightable material.

Abraham Lincoln's Gettysburg Address is out of copyright for two reasons: first, that it is the work of a government employee on official duty, and second that even if it were subject to copyright, the copyright would have expired nearly a hundred years ago. A derivative work, for example its setting in the Aaron Copland-Carl Sandburg collaboration as A Lincoln Portrait is copyright because Copland and Sandburg did something with it to make a very different work.

The I Have a Dream speech of Dr. Martin Luther King, Jr. is in the public domain because Dr. King never chose to copyright it, and his heirs never got the chance to do so. Because it is not copyright it can be used for almost any purpose possible irrespective of its appropriateness. If it were transmuted into a commercial "I have a dream -- that you will buy a (name make of car) from (name dealership)", then it would be in poor taste; the only reason that it isn't done is that it is so much in bad taste that nobody would likely buy a car from that dealership. Or if it were a dream of sordid sexuality (details will be spared) or even turned into hate speech (let us say a Klansman saying  "I have a dream -- that black people would again be slaves, and that Jews would be sent back to Russia") it would be more a violation of taste than of copyright laws.       

Parody is usually protected even if the original is copyright. That's why Mad Magazine can make parodies of hit movies. So The Sound of Music becomes The Sound of Money as an allusion to its being a greater effort at marketing itself than a movie musical. The parody would not impinge upon the ability of the owners of the film to sell admissions or video, and it is something that the owner of the movie's copyright would not likely do. 

Information cannot be copyrighted. Literary structure cannot be copyrighted. Significant additions can be, and then because those additions require significant effort, talent, and cost. First-rate talent in writing, editing, composition, musical performance, film direction, and photography is rare, and copyright protects that by law. 

[Torie]

Who is going to buy the later edition, for a lot more money with de minimus changes, rather than the earlier edition that some publisher will publish after the copyright period expires?  Isn't it kind of a moot point?

[J. J.]

Who is going to buy the later edition, for a lot more money with de minimus changes, rather than the earlier edition that some publisher will publish after the copyright period expires?  Isn't it kind of a moot point?

It depends.  Like the Robert's Rules series, there are a number of changes and one book, on a technical answer, may yield a different result than another.

There is a substantial difference on bylaw interpretation, for example, between the 1981 and 1990 editions.  The authors basically imported from another book, that they held the copyright to, and put it in the 1990 edition.