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Who owns the copyright in scans of public domain works?

I love Plan59.com. If you’re my age or a little older, almost any click on this smartly designed and comprehensive website can recreate a certain feeling that comes with recalling a much more secure, confident and simple America — kind of like the grown up version of Dick and Jane.

I would use the graphics from Plan59.com every day if I could, but I don’t have their permission. On the other hand… whose graphics are they, really? They put it this way:

PLEASE NOTE: The images on this site are embedded with an invisible digital watermark and IPTC metadata. Are you free to scan and market images out of that nifty 1936 Hupmobile brochure you got at the flea market? Yes, if it was published without a copyright, or if the copyright has expired. Is it okay to use the images we’ve made from the same catalog? Ahem, cough. We own the scans we’ve made—they represent a considerable investment in equipment, source materials and labor over the past five years. Every jpeg and gif on this site is copyrighted and marked as belonging to us. Please, no borrowing without getting permission.

Rockwell copy copy copy

Great metaphor. Probably not great fair use.

Hmm. What they’re saying is that the Hupmobile image is in the public domain, but that they have made a new, derivative work from it by virtue of their “considerable investment in equipment, source materials and labor.” Well, that sounds fair. If they thought they couldn’t protect their work, they probably wouldn’t have gone through the trouble. But does it comport with copyright law?

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