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June 20, 2005


I pursued instead the unfair competition thread. I found Howard Abrams' 1983 article (Sup. Ct. Rev. 509-581) very useful, especially for the tangled legislative history and the potentially confusing applicability of state law. Withstanding the former however, I am pursuaded that in the present (hypothetical) case Copyright must preempt most all of the plaintiff claims. After all, we are hypothesizing about material that has (presumably) already been copyrighted. I am still pursuing more recent cases through Patry's (charactistically thorough) 1994 case-law update (Copyright law and practice 1115n-1117n) and the few new cases cited by the USCA editors, but have paused at NBA v. Motorola (105 F3d. 841 [1997]) as particularly helpful. This case would seem to be authoritative, at least for the 2nd Circuit where I sit. If one were concerned with the tiny remnant of unfair competition claims, namely 'reverse passing off' (if I have got that right), a notice for each issue taken from X would cover (?).

Is this reasoning sound?

Although it's more than a month since your reply I want to acknowledge your help. Thanks for a reply both legal/philosophical and pratical. Thanks particularly for the referral to Bridgeman (36 F.Supp 2nd 191), which prompted me to set off in earnest on copyright research. As to practical advice about the quality of digitization from film I take your point but had in mind only filling in gaps.
I must say your comment about unfair competition and misappropriation is very intriguing and has led into an underexplored area of law, I far as I can tell so far.
Finally, I see there is by now another thread -- investigating the ... status of a serial -- that I will follow next.
Thanks again.

John, you ask a really interesting question, and I am not aware of any case law that directly addresses the issue. I think the bottom line is that you have to figure out how risk-adverse your institution is.

The key issue in your question is whether a microfilm company secures a copyright when it microfilms a public domain newspaper. Based on the Bridgeman decision, I would argue no - but if the microfilm company adds something creative in the process (such as editorial matter), the answer would be yes. There may be limitations in the agreement with the company (if they microfilmed the papers for you) or in the purchase agreement that would restrict your use of the microfilm. A company might be able to bring some sort of unfair competition or misappropriation suit against you as well if you competed with their commercial product.

I don't know if any of these arguments would hold water - but I also think that the big microfilm companies might object if they thought their market was being hurt, regardless of the merit of their case. This is classic risk assessment - you have to figure out whether you are willing to risk angering a microfilm company.

Here is the good news: I have yet to see pages digitized from microfilm that are the equivalent of digitizing from the original paper. If you are going to digitize, I would recommend going back to the clearly public domain paper original whenever possible, and leave microfilm digitization for those cases when paper copies can no longer be found. I would love to have someone prove me wrong, but as of now, it seems to me that digitizing microfilm is a poor use of funds.

Check discussion at

Thank you for the clarity of your (complicated) reply. I would like to expand the question to ask: When can you digitize microfilm copies of old (out-of-copyright) newspapers (or other periodicals)? Does a commercial use of such digital images change things? What do filmers of regularly published works own?


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