What if the original document or photograph is not subject to a copyright due to the passage of time, can you claim a copyright in a digital copy you make of the original? This was the question of one of my readers about my post on Arizona owning history.
The ability of the U.S. government to implement a copyright law is derived from Article 1, Section 8, Clause 8 of the U.S. Constitution itself that states that Congress shall have the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The original Copyright Act of 1790 established a U.S. Copyright with a term of 14 years with a 14 year renewal. In 1831 the Copyright Act extended the term of a copyright to 28 years with a 14 year renewal.
The Act extending copyright protection to photographs and photographic negatives (13 Stat. 540, chap. 126) was signed by President Abraham Lincoln March 3, 1865. The Act provided for the deposit in the Library of Congress of a printed copy of each copyrighted work within one month of publication and empowered the Librarian to demand such copy, with forfeiture of copyright as a penalty for noncompliance. Therefore, during the time period of the original act, unless a copy of of a photograph was deposited in the Library of Congress it would not have been covered by the copyright law. See also ETS-HOKIN v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000).
The Copyright Act of 1909 increased the renewal term to 28 year. Later acts increased the term to its present term of 95 years plus 120 years or the life of the creator plus 70 years. See this list of countries and copyright length.
A document or photograph that does not have copyright protection either because of the age of the document or otherwise, is said to be in the public domain. It has long been the law in the United States that a copy of something in the public domain will not support a copyright. See L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490-91 (2nd Cir. 1976) as cited in Matthew Bender & Company, Inc. v. West Publishing Co., 158 F.3d 674 (2nd Cir. 1998).
Of course, the trick is determining if something is in the public domain. In the case of the postcard to which the State of Arizona claims rights, the age of the card plus the fact that the creator of the card was listed as unknown indicate a work in the public domain. Even if the photographer had been known, a card created in 1910 would not be subject to any current copyright law.
Currently, this area of the law is known as Intellectual Property Law and it is probably one of the more complex areas of the law along with tax law and securities. Here is a pretty good summary from Cornell University. Any work published in the U.S. before 1923 is now in the public domain due to copyright expiration. If a work was unpublished then the expiration date goes back to 1890 for both unpublished anonymous and pseudonymous works, and works made for hire and unpublished works when the death date of the author is not known. Also, unpublished works when the author is known are in the public domain if the author died before 1940.
As a genealogist it is a good idea to have a basic understanding of copyright. It is not unusual to see limited publication books both online and in print that contain many obviously copyrighted reproductions. An ounce of prevention is really worth a pound of cure.
Now back to the original question, can I claim a copyright on a digital copy? The simple answer is no, but with reservations. If you add your own creative element to the work, then your work may be copyrighted. But if you just scan the document or photograph, like was done by the State of Arizona, the copy cannot be copyrighted. This, of course, does not stop the State (or anyone else) from making the copy unusable by putting on a huge watermark claiming ownership.