Unusual Copyright question, this is what I like to do:
1.  Buy a paper book.
2.  Scan the pages I want into the computer, resize the pages and then
print out one copy of each page onto cardboard flash cards.
3.  Physically destroy the corresponding pages from the book.
4.  Sell the printed cardboard flash cards.
5.  Repeat this process (buy another copy of book for making another
set of flash cards).
Question:  Is this legal?  
My thinking is that copyright laws say that it is illegal to "make or
transfer copies" which imply that the original remains, but this is
NOT the case here.  There exists only one set of flash cards for every
copy of book purchased and destroyed, as such, the publisher/author
has not been deprived of any revenue.  Also, I would think the issue
of "altering" copyright work would NOT apply because it also implies making
modified copies.  Are there any similar/known cases out there?  
Perhaps another way of looking at this question is this:  Can I
purchase a book and repackage it and sell it (without making more
copies than I purchased)?

---

Request for Question Clarification by pafalafa-ga on 25 Oct 2004 08:30 PDT

aaaaa-ga,

While your question certainly is unusual, the answer, I believe, is
clear cut --you can't do what you're proposing, at least not without
risking getting sued for infringement.

Copyright law is pretty clear on this -- only the holder of the
copyright is authorized to make reproductions (regardless of whether
the original remains intact or not).

There are certain "fair use" exceptions to this general rule, but I
don't think anyone would consider copying an entire work onto flash
cards and then selling it as a "fair use" exception.

There is also an exception that allows re-sale of an item (which is
how used book stores stay in business), but this still does not allow
for reproducing the work in any form (even if the original is
destroyed).

I can certainly steer you to official language that spells out the
protections offered by copyright, if that would serve as an answer to
your question.


Let me know if that would meet your needs.  And if not, perhaps you
can spell out in a bit more detail what sort of information you're
looking for here.

Thanks.

pafalafa-ga

Hi aaaaa-ga,

If the books are not in the Public Domain, you will need to get
permission from the holders of the copyrights. This has nothing to do
with replacing one item with another item and then destroying the
first. Copyright not only protects the owner's right to receive
payment for the work, it also protects the owner's right to control
how it is used (for example, making flash cards).

10 Big Myths about copyright explained
6) "If I make up my own stories, but base them on another work, my new
work belongs to me."
False. U.S. Copyright law is quite explicit that the making of what
are called "derivative works" -- works based or derived from another
copyrighted work -- is the exclusive province of the owner of the
original work. This is true even though the making of these new works
is a highly creative process. If you write a story using settings or
characters from somebody else's work, you need that author's
permission."
http://www.templetons.com/brad/copymyths.html

How to Investigate the Copyright Status of a Work:
http://www.copyright.gov/circs/circ22.html

>>>>> 

Your best bet would be to make flash cards from books that are in the
Public Domain (all book published before 1923).

When U.S. Works Pass Into the Public Domain:
"Published before 1923: In public domain"
http://www.unc.edu/~unclng/public-d.htm

How do I find out whether the book is in the public domain?
"Anything copyrighted prior to 1923 is in the public domain.
(Practically speaking, this includes anything published prior to 1923,
since publication without copyright put the work straight into the
public domain."
http://onlinebooks.library.upenn.edu/okbooks.html#whatpd

COPYRIGHT PROTECTION IN A DERIVATIVE WORK: USCO circular 14:
Copyright registration of a revised edition of a public domain work
extends only to the revisions, not to the original material.
"The copyright in a derivative work covers only the additions,
changes, or other new material appearing for the first time in the
work. It does not extend to any preexisting material and does not
imply a copyright in that material.
One cannot extend the length of protection for a copyrighted work by
creating a derivative work. A work that has fallen in the public
domain, that is, which is no longer protected by copyright, may be
used for a derivative work, but the copyright in the derivative work
will not restore the copyright of the public domain material. Neither
will it prevent anyone else from using the same public domain work for
another derivative work. In any case where a protected work is used
unlawfully, that is, without the permission of the owner of copyright,
copyright will not be extended to the illegally used part."
http://www.copyright.gov/circs/circ14.html

Public Domain Works That are Modified:
"Modifications to a public domain work may be protected by copyright
and cannot be used without permission. A famous example used in many
copyright classes is of the artist who paints an elaborate hat and
mustache on the Mona Lisa. Even though anyone is free to copy the Mona
Lisa image, the modified image (with mustache and hat) is protected
under the artist 's copyright."
Compilations:
"Often an author creates a work by selecting various public domain
components and grouping them together. If the selection, coordination
and arrangement of the material is unique it will be protected as a
copyrightable compilation.
EXAMPLE: The owners of the book Bartlett's Familiar Quotations
selected and arranged famous quotes. Anyone may copy a few quotes from
Bartlett's Familiar Quotations, but no one may copy the arrangement
and selection of all the quotes."
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-b.html

>>>>>>

Additional Link of Interest

4) "My posting was just fair use!"
"The 'fair use' exemption to (U.S.) copyright law was created to allow
things such as commentary, parody, news reporting, research and
education about copyrighted works without the permission of the
author. That's important so that copyright law doesn't block your
freedom to express your own works -- only the ability to express other
people's. Intent, and damage to the commercial value of the work are
important considerations. Are you reproducing an article from the New
York Times because you needed to in order to criticise the quality of
the New York Times, or because you couldn't find time to write your
own story, or didn't want your readers to have to register at the New
York Times web site? The first is probably fair use, the others
probably aren't.
Fair use is usually a short excerpt and almost always attributed. (One
should not use more of the work than is necessary to make the
commentary.) It should not harm the commercial value of the work -- in
the sense of people no longer needing to buy it (which is another
reason why reproduction of the entire work is a problem.)"
http://www.templetons.com/brad/copymyths.html

I hope I've been able to make this clear for you. If you have any
questions, please post a clarification request *before* closing/rating
my answer and I'll be happy to reply.

Thank you,
hummer

Search Strategy
I was able to use my bookmarks and draw on my extensive research on
this subject that I've made in the past.

---

Request for Answer Clarification by aaaaa-ga on 25 Oct 2004 11:13 PDT

Hi:
Thank you for your answer.  I do understand the general concepts
behind reproduction of copyrighted material but my question has more
to do with "repackaging" than "reproduction".  Let me give an example:
If I buy a book (or a magazine) and cut out pictures from it and glue
them onto flash cards and sell these flash cards, have I broken any
copyright laws?  If so, I would certainly be shocked, please provide
references you have to support that this activity would be illegal.
If this is not illegal, then where, from this example to what I am
proposing to do, has it become illegal?  Is it the scanning process? 
If so, what if (hypothetically) I had a scanner which only scans once
and then will automatically destroy the page being scanned, would that
then be OK?  Is it the printing?  If so, what if (hypothetically) I
could lift the original ink off the original page onto a new page,
then would that be OK?  I realize that I am proposing bizarre
scenarios here but I am trying to get a clear understanding if
copyright laws applies to this situation given that I have purchased
the original work.  Basically, instead of cutting and glueing paper
which I believe is legal, I am doing cutting and pasting with the use
of the computer and printer.  Is that then illegal?  If so, why? 
Thanks.

---

Clarification of Answer by hummer-ga on 25 Oct 2004 12:34 PDT

Hi aaaaa-ga,

I think where you might be getting confused is thinking that once you
buy the book, you own it. Yes, you own that particular book, but not
the intellectual property within the book (text & art). You can cut up
the pages of your book all you want, and make flash cards for your own
kids, but you may not *distribute* those cards in any way. It doesn't
matter if you've cut paper out of a book, downloaded images from the
web, or used your scanner - all of those things are fine for your own
use, but not for distributing them.

If I buy a book (or a magazine) and cut out pictures from it and glue
them onto flash cards and sell these flash cards, have I broken any
copyright laws?

Yes.

Is it the scanning process? 
If so, what if (hypothetically) I had a scanner which only scans once
and then will automatically destroy the page being scanned, would that
then be OK?

No. You keep mentioning destroying the pages, but remember, the pages
you are using are only copies themselves, they are not the original
works.

Is it the printing?  
If so, what if (hypothetically) I could lift the original ink off the
original page onto a new page, then would that be OK?

No.

Basically, instead of cutting and glueing paper which I believe is
legal, I am doing cutting and pasting with the use of the computer and
printer.  Is that then illegal?

Yes.

If so, why? 

Because you would be distributing copyrighted material. The book you
bought is just a copy itself, among many thousands of copies, it's not
in any way original. Even if you bought a First Edition, signed by the
author - you'd own that particular book and you could cut it up if you
wanted to, but you wouldn't own the intellectual property inside the
book.  It's the "intellectual work" that is copyrighted, not the paper
that it is printed on. Look at it this way - do you think Walt Disney
would be pleased if you started to distribute Mickey Mouse flash
cards, even if you cut the cartoons from a comic book that you bought?
 No, they would not be pleased because you had not asked their
permission to use *their* Mickey Mouse on *your* flash cards.

WHAT IS COPYRIGHT?
'Copyright is a form of protection provided by the laws of the United
States (title 17, U.S. Code) to the authors of ?original works of
authorship,? including literary, dramatic, musical, artistic, and
certain other intellectual works. This protection is available to both
published and unpublished works. Section 106 of the 1976 Copyright Act
generally gives the owner of copyright the exclusive right to do and
to authorize others to do the following:
* To reproduce the work in copies or phonorecords;
# To prepare derivative works based upon the work;
# To distribute copies or phonorecords of the work to the public by
sale or other transfer of ownership, or by rental, lease, or lending;
# To perform the work publicly, in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures and
other audiovisual works;
# To display the copyrighted work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial,
graphic, or sculptural works, including the individual images of a
motion picture or other audiovisual work; and
# In the case of sound recordings, to perform the work publicly by
means of a digital audio transmission.
http://www.copyright.gov/circs/circ1.html#wci

Please let me know if you need further clarification.
hummer

---

Request for Answer Clarification by aaaaa-ga on 25 Oct 2004 14:11 PDT

I do understand that owning a book does not mean that I own the
intellectual property within it.

Let's first just focus on the example of cutting up the pages of a
book and seling them, as this point seems crucial in answering the
rest of the question.  No one here has yet shown unequivocally that it
is illegal.  For example, if I have a book that is missing a page, now
it would be illegal to sell this book because I would be selling
"parts of a book" because it is incomplete?  That makes no sense to
me!  Remember, I am NOT selling MORE pages than what the book has.

My intuition is that the first sale doctrine allows me to do whatever
I want, for example, selling a book one page at a time if I so
chooses, provided that I am NOT making EXTRA copies to sell.  Someone
please PROVE that it is illegal to sell pages of an original book. 
Thanks.

---

Clarification of Answer by hummer-ga on 25 Oct 2004 14:26 PDT

Hi,

Just to be clear, are you suggesting as in my example above, that you
buy a Mickey Mouse comic book, cut out the comics and make flash cards
out of them, and then sell your flash cards?

hummer

---

Clarification of Answer by hummer-ga on 25 Oct 2004 14:39 PDT

Hi aaaaa,

Copyright basics for Web authors and users:
"As the prime rule, the copyright owner (the creator of work such as
book, piece of art, or Web page) has exclusive right to make copies of
the work and to make it generally accessible ("communication to the
public")."
"It is never wrong to ask for a person's permission to use something
he has created. Even in such cases where it is legal to use other
people's texts without their permission (or even against their
explicit will), it might be wise and polite to ask."
"When using someone's work, either with his permission or on the basis
of exceptions to copyright, you should normally mention the author and
the source. The source can be specified using the title of a book
(perhaps with more detailed bibliographic information such as an ISBN
number)..."
http://www.cs.tut.fi/~jkorpela/webcopyr.html

hummer

---

Request for Answer Clarification by aaaaa-ga on 25 Oct 2004 14:43 PDT

Yes, let's say I buy a comic, then tear out the pages and glue them
onto flash cards and then sell them, how is that illegal?
My sense is that the first sale doctrine over-rides the copyright laws
because I purchased that copy of comic.  Remember that I am NOT making
EXTRA copies.

---

Clarification of Answer by hummer-ga on 25 Oct 2004 15:26 PDT

Hi aaaaa,

So you really don't think Disney would mind you making money with
Mickey's image because you bought and paid for the comic book?

Copyrights FAQ 1.3
I'VE MODIFIED WHAT SOMEONE ELSE DID, SO IT'S A DERIVATIVE WORK NOW - I
CAN COPYRIGHT THAT, YES?
Not at all.  You have violated their copyright.  The right to assign
derivative works rests SOLELY with the copyright holder - you cannot
assume that you can do it.  If it's sufficiently different, you might
be able to get a copyright, but if it's obviously taken from another
copyrighted work - it's infringement.  Plain and simple."

"Copyrights are really pretty basic - if you have a copyright, you
control what can be done with it.  If you do not have control of the
copyright, then you can't do with it as you please (with certain VERY
LIMITED exceptions)."
http://www.rexx.com/~jaguar/copy.html

hummer

---

Clarification of Answer by hummer-ga on 26 Oct 2004 06:15 PDT

Hi aaaaa -

"If I sell you a copyrighted book, you can do pretty much whatever you
want with that book, short of reselling the information in it, because
when you start to make money off my hard work, thats when we have a
legal issue. But if you want to cut off the spine and put it in a
spiral binder at Kinkos, that's up to you. If you want to rip out
pages, rearrange the pages, take the pictures out and frame them for
art on your wall... whatever."
http://www.webproworld.com/viewtopic.php?t=13978

I think that's the key, aaaaa, and what I've been trying to say - you
would be making money off of somebody else's work.

hummer

---

Request for Answer Clarification by aaaaa-ga on 26 Oct 2004 06:50 PDT

Let's be up front, that wasn't quite what you have been saying all
along...  You and others all have alluded to the fact that I cannot do
anything to the book that I have bought because it will violate the
copyright laws.
I don't think that you can help with my original question given that
you have just come to understand the First Sale Doctrine.  Thank you.

---

Clarification of Answer by hummer-ga on 26 Oct 2004 10:29 PDT

Hi aaaaa,

I'm sorry if we are misunderstanding each other. From the beginning I
have said that you can do anything with your book, just don't try to
sell the copyrighted property within it (being the text or artwork).

My first clarification:
"I think where you might be getting confused is thinking that once you
buy the book, you own it. Yes, you own that particular book, but not
the intellectual property within the book (text & art). You can cut up
the pages of your book all you want, and make flash cards for your own
kids, but you may not *distribute* those cards in any way."

My latest clarification:
"If I sell you a copyrighted book, you can do pretty much whatever you
want with that book, short of reselling the information in it, because
when you start to make money off my hard work, thats when we have a
legal issue."

I maintain that you own the book, do what you want with it, but do not
make flash cards out of the text or artwork for resale without asking
permission first. The easiest thing to do is to use a book that is in
the Public Domain. I'm sorry this is not the answer you wanted to hear
but I think the advice is sound.

Sincerely,
hummer

The researcher did not understand the First Sale Doctrine, only after
much arguing back and forth did he finally understand it.  My original
question remains unanswered and I do not have any confidence that this
reseacher has the ability to answer it.

Let me take your Clarification questions one at a time:

(1)"If I buy a book (or a magazine) and cut out pictures from it and glue
them onto flash cards and sell these flash cards, have I broken any
copyright laws?"  Answer: Yes.  The exclusive rights belonging to a
copyright holder are delineated at 17 U.S.C. Section 106
(http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec=106).
 Specifically, this act violates 17 U.S.C. Section 106(5) because you
are "publicly performing" (by cutting out the pictures, pasting them
onto flash cards and selling them).  Note that if you had simply sold
the entire magazine, you would likely not be violating copyright law
because when you bought the entire magazine, you acquired the right,
under the first sale doctrine (see 17 U.S.C. section 109
(http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_109.html)
to sell the ~entire~ magazine to some other person.  The first sale
doctrine, however, does not contemplate cutting up the original work
(note that the statute says, "a particular copy," NOT "pieces of a
particular copy") and selling the individual components.  You were
given no rights by either the copyright owner or the magazine
publisher (who owns the copyright in the magazine in its entirety) to
profit from individual components of the work as a whole.  Indeed,
assume that there is a photo in the magazine taken by Annie Liebowitz.
 She granted rights to the magazine to include her photograph.  When
you buy the magazine, you get a right, under the statute and the
first-sale doctrine, to sell the magazine and divest yourself of any
copies of it.  What do you think Annie Liebowitz would think if she
saw her copyrighted photo on your flash cards for sale on the
Internet?  Would she be able to sue you?  You bet.  This is not like,
e.g., "clip art."  When you buy clip art, you are being granted an
express license to cut out the pictures, paste them wherever you want
and sell them, if you wish, like in a newsletter or on flashcards.

(2) "If this is not illegal, then where, from this example to what I am
proposing to do, has it become illegal?  Is it the scanning process?" 
Answer: Yes.  By scanning, you are making a copy.  That violates 17
U.S.C. section 106(1).  I had a related argument with hummer one time
at http://answers.google.com/answers/threadview?id=356201.  If I take
a photograph of someone else's photograph, that is an unauthorized
copy.

(3) "If so, what if (hypothetically) I had a scanner which only scans once
and then will automatically destroy the page being scanned, would that
then be OK?"  Answer: No.  You still made an unauthorized copy before
the original page was destroyed.

(4) "If so, what if (hypothetically) I could lift the original ink off
the original page onto a new page, then would that be OK?"  Answer:
No.  You are still reproducing the original work.  The image you
create with the lifted ink is a reproduction of the original image
since it is not (metaphysical implications aside) the original image.

Not so fast, folks.  Your points are all well-taken, but this
copyright stuff is shifting around these days.  Clearly, the owner of
a book can re-sell it.  But can he re-sell individual pages...?  I'm
don't think the courts have given an opinion on this for paper
products, so hummer-ga's answer is probably as accurate as an answer
could be.  But --as I understand cases like Softman v. Adobe -- the
courts have explicitly allowed the resale of software **components** 
-- not only the entire software package can be resold, but so can
individual pieces of it.

Might this extend to paper products, too...?  There's no case law that
I know of on this.  What are your thoughts?

paf

Hi ipfan! 8-)

paf, aaaaa wouldn't be reselling the paper pages, they would be making
the pages into something else and calling it their own.

10 Big Myths about copyright explained
6) "If I make up my own stories, but base them on another work, my new
work belongs to me."
False. U.S. Copyright law is quite explicit that the making of what
are called "derivative works" -- works based or derived from another
copyrighted work -- is the exclusive province of the owner of the
original work. This is true even though the making of these new works
is a highly creative process. If you write a story using settings or
characters from somebody else's work, you need that author's
permission."
http://www.templetons.com/brad/copymyths.html

You can't use someone else's work without their permission. 

hummer

It is my understanding that transforming a work from one medium to
another without the permission of the copyright owner is a violation
of law. The purchase of the work does not grant the purchaser the
right to alter it and redistribute it.

Taking a book that was published as a single volume and making it into
single-page flashcards is similar to taking an LP phonograph record
and turning it into a CD. Although there are businesses that do
precisely that, such businesses are leaving themselves open to
prosecution.

The original question asked about scanning in a copy of the book, and
that seems clearly a violation of copyright.  Philosophical niceties
about magically transferring the ink aside, a copy is a copy, and
would be an infringment.

But the business of mounting individual pages seems another matter to
me.  People DO sell album covers, dust jackets, and things of that
sort that are "pieces" of the original work, and they're probably
within their first sale rights to do so.  How far those rights extend
-- as the Mickey Mouse example illustrates -- is a question I have not
seen addressed in the copyright literature/cases that I've come
across.

But as for original scenario -- of scanning the book and then printing
and mounting pages -- it seems we're all in agreement that that's
beyond the pale.

paf

paf, the way I understand it, it wouldn't be just pieces of the book,
the entire book would be transferred to the cards. hummer

I agree with the advice and opinions given. It certainly raises some
interesting questions as well.  Reliance on the First Sale Doctrine as
the questioner proposes would be misplaced given his proposed
activities.

One solution to the problem, which may or may not be of interest,
might be to sell the service not the good.  Under this scenario, allow
customers to give you their copy of the book and sell the service of
modifying the book into flash cards.  You could even return their
copies to them!  Viola.  They could also purchase the book from you
(basket item 1) and the flash card convert service (basket item 2) all
in one transaction.  In that case, the First Sale Doctrine (i.e. your
customer's rights) would allow them to pay someone to modify their own
copy of the book for their personal use.

I don't see any problems here under Copyright laws or the Lanham Act...any thoughts?

I think there's a pending question on the table: "Someone
please PROVE that it is illegal to sell pages of an original book." 
How about National Geographic v. Classified Geographic, 27 F.Supp. 655
(D. Mass. 1939), available at
http://www.kentlaw.edu/e-Ukraine/copyright/cases/natl_geographic_v_classified_geographic.html?
 It holds that such conduct violates the copyright owner's adaptation
right [the right to prepare derivative works under 17 U.S.C. Section
106(2)].

Well I'll be, ipfan-ga.  That sure hits the nail on the head, and
should put this issue squarely to rest.

Well done.

paf

Ipfan is a copyright guru, to be sure, and we're lucky to have him on
GA. But golly wolly, "derivative works" was my very first answer, way
back when (I know, I know, not as "official" as your link).

...U.S. Copyright law is quite explicit that the making of what
are called "derivative works" -- works based or derived from another
copyrighted work -- is the exclusive province of the owner of the
original work. This is true even though the making of these new works
is a highly creative process. If you write a story using settings or
characters from somebody else's work, you need that author's
permission."
http://www.templetons.com/brad/copymyths.html

Thanks, ipfan, for being there and for your support. Thanks to you
too, paf. GA really is a group effort much of the time.

Take care, you guys 8-)
hummer

In almost all the books I've seen there is a paragraph amongst the
frontmatter that says: this book may not be resold in any form or
binding other than the original and without a similar condition being
imposed upon the subsequent purchaser.

Remember also, there is not just the copy right, but also the moral
right (which is in itself a legal right, not a vague concept) of the
author to control how his work is used.

Owain