http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.ht... Bridgeman Art Library v Corel Corp is the most recent caselaw I know on this and judges that faithful reproduction doesn't acquire a new copyright. However, the case in hand is transformative to some degree, it is not an unexposed negative that is being reproduced - I think a new right could well be established in the work (the photos each themselves) as the [manual] production from negatives is not merely mechanical but has a [small] degree of creative input.
From what I can establish NPG came to an agreement out of court with Wikipedia and did not prosecute the alleged tortuous infringement - NPG instead made lots of images available for free and started asking for donations. This suggests that NPG found no merit in pursuing the claim that the works (expensive hi-def "scans" of old paintings) had copyright.
That said I don't think a decision to this end, in the UK, would automatically transfer over and say that the photos here have no new copyright.
You're exactly right; this isn't entirely cut-and-dried, and there's a chance a court could rule in a way that would surprise me.
However, I don't entirely see how a court could come to the conclusion that merely developing film is creative, and I don't see how a court could rule that a new copyright was created if the work done wasn't creative.
Indeed, manual development does have some creative aspects but primarily it's technical IMO. It's a strange thing that it's probably more "creative" than some use of a point-and-click camera, say, but that the camera use would be considered creative enough to have made a work.
Agree with you the more I think about it TBH - developing film is not transformative of itself.
The bar for "creative work" is exceptionally low. Taking an off-center snapshot of a famous painting in the public domain may be sufficient to have copyright on a derivative work. It may be prohibited by the museum for you to do so, but the copyright is probably valid, and they will certainly assert their copyright in the licensed version.
While the underlying data in a phone book cannot be copyright, the choice of page numbering is copyrightable. I don't think it's any stretch that an artist would gain protection for a new print made from an old negative, particularly if they did any selective exposing.
Being transformative is a criterion for deciding fair use (which this may or may not be), but is not necessary to gain copyright as a derivative work. While I feel slapping a restrictive copyright notice on these images is somewhat reprehensible, I would not bet against it being upheld.
The only question you need to ask yourself is this: if there is an expression here then that expression would have to move the needle from 'derivative work' to 'sufficiently new creation to warrant individual copyright'.
Since the predicted outcome of developing a film is that you get what was on the other side of the lens during exposure and any skilled darkroom operator would be able to accomplish this and end up with more or less the same result I think that it would be quite a stretch to argue that this is in fact a creative act.
It's work. It's skilled, but it is not creative (though those passionate about darkrooms will likely disagree, but that's their problem, the law is what it is). You could likely find thousands of people with the required skills and all of those would barring accidents come up with the exact same negatives as a result of the development process.
If you take a negative and you purposefully change it to reduce its fidelity then that might be a creative act. But if you do it to a negative that you did not expose you're still going to end up (most likely, not 100%, this depends on the degree of modification) with a derivative work, the case you cite above has lots of changes rather than just a change in exposure or coloring or new photographic elements that weren't present in the old image and hand drawn bits it has all of them. It's clearly a mash-up of several elements of which the original photograph admittedly makes up a sizeable chunk but definitely not 100% of it.
Your 'off-center snapshot' is a new photograph which deliberately changes the composition of the original and has a larger chance of being deemed original (a better example would be say a photograph of the inside of a museum gallery depicting a number of artworks at once).
But the copyright on a derivative work lies squarely with the holder of the original copyright.
In this case the images are as close to an accurate reproduction as you could get.
So, either the person that developed these images has taken images that were in the public domain, has within his rights made a website that displays these pictures but has in error (either deliberate or through a misunderstanding of the law) placed a copyright sign underneath them.
Or the original photographer has those copyrights, which have been subsequently (presumably) passed on to his/her estate.
The latter is likely not the case since (1) this is an American photographer and (2) in those days copyright still needed to be registered afaik. But let's for the sake of the argument assume that this is the case then they, not the person that made the website would hold the copyright.
So either way I don't think that copyright notice is legitimate.
Say you lose an SD card with a bunch of pictures on it that does not automatically transfer the rights to those pictures to the finder or to anybody who subsequently buys that SD card from the person who found it. Copyright does not work that way, it flows from the act of creation.
The only question you need to ask yourself is this: if there is an expression here then that expression would have to move the needle from 'derivative work' to 'sufficiently new creation to warrant individual copyright'.
I don't think that's the right way to view it. Contrary to the common perjorative usage of 'derivative', a 'derivative work' has a full individual copyright. The difference is that that publishing the work might also infringe on the rights of the original. For example, in Cariou everyone posits that Prince holds a copyright to his derivative works. The only question in the case is whether their usage of the original falls under fair use. But whether fair use or not, they remain derivative works.
But the copyright on a derivative work lies squarely with the holder of the original copyright.
We're at the limits of my knowledge, but I don't think this would be the interpretation under US law. Instead, I think the holder of the original has no automatic claim to the copyright on the derivative, but would likely prevail in a suit against the infringer to collect damages. I'll try to research more. Thanks for your followup.
http://lawclanger.blogspot.co.uk/2009/07/its-not-often-that-... addresses the last relevant trial, National Portrait Gallery vs Wikipedia, I can recall from the UK [and mentions Bridgeman in passing].
From what I can establish NPG came to an agreement out of court with Wikipedia and did not prosecute the alleged tortuous infringement - NPG instead made lots of images available for free and started asking for donations. This suggests that NPG found no merit in pursuing the claim that the works (expensive hi-def "scans" of old paintings) had copyright.
That said I don't think a decision to this end, in the UK, would automatically transfer over and say that the photos here have no new copyright.