I talked to the legal department about this specific issue a while back.
Their opinion, which I agree with, is that restoration involves 2 legal
principles: sweat-of-the-brow and threshold-of-originality. And while
the U.S. doesn't recognize sweat-of-the-brow, there are certainly cases
where restoration passes the threshold-of-originality (even in the U.S.
where the bar is high). When I asked for an example, they suggested that
colorizing a black-and-white movie would probably pass the threshold of
originality and thus create a new copyright. Regarding Adam's
restoration of Left Hand Bear, I think it is unclear how a U.S. court
would interpret it, but I would be willing to give Adam the benefit of
the doubt on that one.
Ryan Kaldari
On 7/9/12 4:03 PM, Adam Cuerden wrote:
Okay, time fore some responses. Let me remind you that this subthread
began with an example of reconstructing missing parts of the image
from ones own creativity, to find a solution around an original which
had been cut into an irregular shape with scissors, and where no other
copy was, or was likely to ever be, available:
http://lists.wikimedia.org/pipermail/commons-l/2012-July/006588.html
There's a lot of other restoration work in the example image, but, for
simplicity's sake, let's look at that, because, on its face, creating
new parts of the image seems an obvious example exercising creativity.
This was, by the way, as part of an attempt to work out a compromise,
in which we could begin to discuss possible bright line rules, for
instance, if a largish area has had to be recreated in the style of
the original by the restorer, the restorer can claim copyright, but I
should waive any possible rights to it if the restoration work was
primarily focused on work at a very small scale, where creative
possibilities are limited by what's around the damage.
However, this has been completely sidetracked at this point. What were
the responses to this by Cary and David?
To ignore the actual issues raised. Cary and David basically argue
that because the goal is to reproduce the original, this means
originality of expression doesn't exist.
This is false. First of all, let's talk about philosophy of
restoration. It's very rare that a restorer will have multiple copies
of a work to work from, so if information is missing - damage,
misprinting, etc, there's no way to know exactly what was there.
Further, in most cases the goal is to produce the best possibly copy
of the artistic intent of the original. Example: Large wood block
prints for ephemera such as newspapers, often have gaps and
misalignments caused by imperfect gluing together of multiple blocks
used to make the image (and possibly due to rushing of the artists who
make the blocks - I'm never quite sure on that point). These are there
in all original prints, and no original print lacks them. This was
certainly not the artistic intent, however, and they tend to distract
from the image for all uses besides learning about wood block prints
in ephemeral publications. It can take a great deal of judgement and
care to remove them, but this does not produce the original, this
produces an idealised original. Likewise, scratches on the image may
be later additions, they may be flaws in the wood/metal/etc, or they
may be mistakes made by a careless apprentice. Keeping the original
might mean leaving the scratch in, however, to produce an idealised
original, you remove it. A hand-tinted image may have tint that bleeds
outside the colour boundaries to fix. The border may have gaps in it
due to the wood having chipped when it was being made. And if you have
to reconstruct part of the image, unless a guide exists (and it almost
never does), only a bad restoration would fail to put in substantial
creative work. It's absolutely necessary to create something that
resembles the original style, but you can't just move another part of
the picture in without modification - you need to carefully create
something new out of elements of the image - a clear case of creative
input that has nothing to do with a straw man "it's only a sweat of
the brow claim that could grant copyright." No, that goes way beyond
sweat of the brow.
The goal of (most) restorations is to create an idealised version, not
to slavishly copy the original. The style and flaws inherent to the
artist are (with rare exceptions) kept - this is an idealization of a
real work - but you are not trying for an exact copy of the original.
The exact copy of the original is merely a colour-adjusted scan.
Cary Bass claims that the better the restoration, the more it
resembles the original. This is simply untrue, and the attempts to
idealise the original can involve substantial creative input.
Further, as is well-known, the UK threshhold for creative input is
very low. Cary and David are simply wrong to suggest that a
restoration would necessarily fail to reach this level,. particularly
one that had to reconstruct sections. David and Cary completely ignore
the reconstruction aspect - which, since, as I said, one almost never
has multiple copies to consider, has to be done out of the restorer's
artistic talent - in order to claim that there is no creative work in
a restoration.
This is false, and shows they don't actually understand the situation
being discussed, despite me having shown a before-and-after visual aid
of an image that had reasonably large sections reconstructed. But,
no, they're sticking their fingers in their ears on that subject, and
just repeating "Sweat of the brow! Sweat of the brow!" as if the
discussion had never moved on from there, and as if *the very
subthread they're commenting on* wasn't explicitly about
reconstructing areas of the image from whole cloth.
-Adam Cuerden
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