Card scans, copyright, etc.
As a copyright and IP attorney, I am always fascinated when some issue arises, combining baseball cards and intellectual property. Here is my take on the legal issues involved with the use of sports card scans, community customs and courtesy notwithstanding.
As others have correctly pointed out, posting an image online does not in any way mean that such an image is in the public domain. It also does not somehow grant anyone a license to do anything in particular with the photo, other than perhaps view it in their web browser.
What is interesting to me is the question of whether someone who makes a scan of a baseball card has actually done anything that is protectable by copyright law. Most of the cards of interest to folks here are so old that the cards themselves are in the public domain. Anything first published in the U.S. before 1923 is now in the public domain, as are any works first published in the U.S. from 1923-1977 without a copyright notice.
So, assuming that a card itself is in the public domain, then is a mechanical scan of the card, which is intended to reproduce as faithful a reproduction as possible, actually protected by copyright? Copyright law requires that some "modicum of creativity" be evidenced in any protected work. Frankly, I am not at all sure that most card scans would meet this requirement. In a traditional camera photograph, there are lots of things like lighting, exposure, and composition, that can combine to create copyrightable elements in a photograph of even the most uncreative of subjects. With scanners, however, the card is pressed flat against the glass, and will almost certainly look exactly the same, no matter who does the scanning. Possibly if some post-scan retouching or optimization is done to the scan, then there would be a "thin" copyright interest in those aspects of the scan, to the extent that they are creative expressions of whomever made the scan. I'm not sure that much attention, however, goes into post-processing of card scans, if at all -- most will simply use an auto-exposure correction tool if they do any post-scan adjusments.
And so, I think it is safe to say that scans of baseball cards that are in the public domain are unlikely to yield their creator any valid copyright interest. If we're talking about scans of newer cards, for example Topps cards, which did feature copyright notices and likely are still protected by copyright, then I think the scan maker and the scan stealer are probably both better off concerning themselves with Topps' lawyers rather than each other.
Regards,
Miguel
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12-23-2009, 05:11 PM
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