From Free Nampeyo:
The first entry in the Free Nampeyo blog discussed Harvard’s copyright infringement claims against Steve Elmore’s book In Search of Nampeyo: The Early Years 1875 – 1892.
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The subject of Harvard’s complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard’s Peabody Museum violated the copyright to their black and white photographs of this pottery. Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling. Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore’s book. Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico. Judge Brack’s ruling “Grants Defendant’s Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff’s Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). ”
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Determining whether copyright infringement has occurred can be a complex matter. The decision depends on two basic factors. The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright. The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe.
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Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard’s cross-motion for partial summary judgement. Judge Brack’s Opinion is that this is not a copyrightable photograph.
Quoting from the Compendium of U. S. Copyright Practices, third edition “as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration”. A photograph should not be registered “if it is clear the the photographer merely used the camera to copy the source work without adding any creative expression to the photo”. Judge Brack argues that this photograph is just such a case. It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a “conservation image” taken as part of a “condition assessment” while the jar rested on a surface with a bunch of other stuff visible behind it.
The second part of the Opinion is more complex. It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC). Below is a comparison of two of the black and white photographs and the illustrations created from them.
First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show “a minimal degree of creativity–if only a humble spark”. Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs “to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece.” However, just because a photograph is copyrightable does not mean that “every element of the work is protected….the less original the plaintiff’s work, the more the defendant must copy to infringe on the plaintiff’s copyright.”
Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard’s photographs: “Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo.” (emphasis added).
Judge Brack notes that the protection of the HHC photographs is “incredibly limited” and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer. He observes that Mr. Elmore’s illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements. The illustrations use line art and are in color. They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds. Judge Brack writes: “Considering only the protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore’s images, reasonable minds could not find substantial similarity between the two.”
He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs. Mr. Elmore’s use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.
Link to the rest at Free Nampeyo
PG says most judges see very few copyright infringement cases and sometimes the way such cases are handled feels a little loose. In this matter, however, in PG’s effervescently humble opinion, the judge seems to be doing a good job.
PG hopes that Harvard becomes increasingly humiliated if it continues this bizarre litigation. It was a terrible idea to bring the suit in the first place and, having so thoroughly lost the first round, the Peabody Museum should quit misspending its endowment by trying to interfere with Mr. Elmo’s labor of love in spreading knowledge of a little-known Hopi artist to a wider audience.