This guide is intended to provide information, not legal advice. If you need legal advice, please consult an attorney.
Digitization of Library materials increases the risk of copyright infringement. This guide provides information that to assist library staff to determine:
Q: Does a digitized item have its own copyright?
A: No, making an exact digital copy of a work from a library collection does not create a new copyright in the digital copy of the work.
At least one court has held that a picture of a public domain work of art is not protected by copyright. The court held that this was the case because the photographer attempting to make a "slavish copy" of a work of art is not using any creative original expression and, thus, the photograph does not meet the standard of originality for copyright to attach. Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999). This same logic has been extended by other courts to slavish copies of three dimensional works. Meshwerks v. Toyota, 528 F.3d 1258 (10th Cir. 2008).
Thus, if a library attempts to make an “exact” digital replication of an existing two or three dimensional work of art without additional creative choices added to the process of digitization (including the photography), the library likely does not hold a copyright in the digital replication.