or local code, for the law is not protected by copyright. But do not copy or scan an entire volume of a privately prepared code for any purpose—even an educational one—without permission. Remember that codes produced by private sector publishers (in the United States this generally is Lexis and West) include copyrightable information such as references, research aides, notes, and case summaries.
What about using photographs or scans that someone else has taken of works in the public domain? Do you need to get permission from the photographer or scanner to use their work? It depends. If a photographer takes a shot of the Venus de Milo, the photograph will almost certainly be protected by copyright, even though the sculpture itself is in the public domain. On the other hand, if a researcher scans a page from the Congressional Record, that scan almost certainly does not count as a copyrightable work. It’s just a copy, which the public is free to use without permission.
What’s the difference? A photograph of a sculpture involves some creativity in selecting the lighting, angle, exposure and so on. Conversely, scanning the Congressional Record is a mechanical process devoid of creativity, and so the scan doesn’t qualify as an original work of authorship under Section 102. This doesn’t mean that photographs of public domain works are always copyrightable and scans never are.[1] It means you have to consider the facts of each case. If in doubt, create your own photograph or scan of the public domain work instead of using someone else’s.[2]
Compilations and Collective Works
1.5. Section 103 Compilations
and Derivative Works
- Protection for original material contributed by the author
- Independent of and does not affect copyright status of pre-existing material
