Friday Fun: Facts, Expression, and Illustrations

There’s a blank calendar grid on the wall outside my office. It’s not there for scheduling.

Why do I find that copyright statement so hilarious? (Other than just because I’m an enormous copyright weenie?) It’s because it is absolutely, 100%, no “it depends” situation here, a completely false claim of ownership. There is NOTHING on that calendar grid that Houghton Mifflin could possibly own. However, it is also possible that with the addition of my annotations, my version of the calendar is copyrightable, to me.

Howzawhatsis?

In the United States, facts are not copyrightable. This comes from a piece of the copyright statute, 17 U.S.C. § 102(b), that highlights that the things that explicitly are not covered by copyright.

“In no case does copyright protection for an
original work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated,
or embodied in such work.”

Facts and data are usually understood to fit into the category of “ideas” here – and it’s worth noting that the reason these things are considered un-ownable has a lot to do with both copyright’s Constitutional goals of promoting progress and innovation, and with the First Amendment’s guarantee against governmental limitations on speech. (If your government-granted monopoly rights in an idea prevented me from discussing it, that could be a big First Amendment problem.)

But when you add new original expression to facts or ideas, you do get something ownable. Original expression can come just from the selection and arrangements of the facts you include (sorting names in alphabetical order? Not copyrightable. Making a list of famous graduates of your high school, in order of the distance they lived from the school at the time of their graduation? Maybe copyrightable.) Original expression can also come from things we think of as more traditionally “expressive”, artistic renderings of data or facts.

Illustrations

I sometimes ask workshop participants if the following image is copyrightable:

Most of the time, most participants immediately say that it is – even if we have just been talking about the fact that facts and ideas are not copyrightable. Only some of this confusion is driven by people who are unfamiliar with statistics; quite often, a person who frequently makes charts and graphs that look a whole lot like that image will be one of the big holdouts for “of course that’s copyrightable!”

And that’s the thing, really – when you start unpacking the concept that facts and ideas are not copyrightable, and you only get a copyright when you add original expression, you pretty quickly reach a place where you have to acknowledge that many scientific figures and other illustrations may actually not be copyrightable at all. (In fact, a court confirmed this a couple of years ago, in one of the few copyright cases I know of directly dealing with plagiarism of research figures, Ho v. Taflove. I keep meaning to write something about it, but it’s so complex I always lose the thread.)

That can be a kind of uncomfortable realization, but human creativity being the joyous wonder that it is, people keep coming up with really really awesome ways to add fantastic expression to factual information. Here are just a few.

The thing that started me off on this whole post, was the work of an 18th-century French medical illustrator, Jacques Gamelin. A colleague who makes collage art from public domain sources introduced me to Gamelin’s work. Although clearly intended to convey factual information about bones and muscles, the bodies and skeletons in Gamelin’s illustrations are also extremely expressive.

Even though I’m sure there’s copyrightable expression in Gamelin’s works, there’s still no copyright in ’em. Published in 1779, his works are in the public domain. Hooray!

Got any great examples of expressive factual illustrations? Add ’em in the comments!