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Is An Expert Certificate Protectable By Copyright In The Us?

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Pillar Of The Community
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1842 Posts
Posted 01/23/2020   11:17 am  Show Profile Bookmark this reply Add txstamp to your friends list  Get a Link to this Reply
SPQR - Jerry lived in the Washington DC area.

Some of his lawsuits were filed there. Not sure about this one.
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Posted 01/23/2020   11:31 am  Show Profile Bookmark this reply Add Bud to your friends list  Get a Link to this Reply
"Philatelligence" is brilliant.
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Germany
1374 Posts
Posted 01/23/2020   11:35 am  Show Profile Bookmark this reply Add stamperix to your friends list  Get a Link to this Reply
Not sure if I follow everything, but in addition to the copyright and trademarks and so on there is the normal "right of use" which only the creator of a text or image has - also without having paid anything for a copyright symbol. So the result of the copyright application here will not tell us whether a person may use the certificates to show them anywhere. As an example, if a poet writes a poem he owns the rights of use for it also without copyright symbol, and only he decides where to publish it.

---
to add: of course I really would like to see all certificate of different companies to be published and searched in an internet place, this would be great. I only think that this is more a question of right of use, less of a trademark or similar. This would be a good question to a lawyer of course, or to the companies like PSE. If they are fine with publishing their documents elsewhere, it's fine.
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Edited by stamperix - 01/23/2020 11:38 am
Pillar Of The Community
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1339 Posts
Posted 01/23/2020   12:10 pm  Show Profile Bookmark this reply Add cjpalermo1964 to your friends list  Get a Link to this Reply

Quote:
if the owner of the stamp can prevent use of the image how could you create a database of certs?


What matters is the identity of the author of the image for copyright purposes, not the owner of the stamp. They are not always the same.

The person who makes a scan or photo of a stamp is the initial author of the resulting image for copyright purposes. Almost always, this will be a person at the expertizing agency, unless they agree to receive an image from the owner (or third party) and use that image on the cert. In the latter case, that author probably would be deemed to have granted an implied license to the expertizer to distribute the resulting cert. Or, the cert as a whole would be deemed an independent copyrightable work; the author of copyright in that combined work would not have the right to control distribution of the stamp image alone, just control the cert.
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Posted 01/23/2020   6:13 pm  Show Profile Bookmark this reply Add Andyrich74 to your friends list  Get a Link to this Reply
Interesting exercise if nothing else!

I'm not a lawyer (although I did stay at a Holiday Inn Express last night) but I don't see why anyone who paid for an opinion, or bought one as part of the sale of a stamp associated with that sale would not be able to freely publish or distribute said opinion. Nor would I see a reason as to why photos of stamps already printed would be subject to any copyright or trademark laws. The only caveat that comes to mind would be someone using a copyrighted image to profit from it, which would not be the case with a database. There may be fine print in some agreement with any of the organizations that provide opinions that one may agree to, but unless there is some hidden language there; what would be the rationale for the PF/PSA and so forth to claim damages or some sort of infringement on posting a database of known/submitted certificates?

If there is a dissenting opinion out there, would like to hear it; and certainly open to changing my mind.
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Pillar Of The Community
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Posted 01/23/2020   6:59 pm  Show Profile Bookmark this reply Add cjpalermo1964 to your friends list  Get a Link to this Reply

Quote:
I don't see why anyone who paid for an opinion, or bought one as part of the sale of a stamp associated with that sale would not be able to freely publish or distribute said opinion


If I pay for a book by a bestselling author, or buy the book at an estate sale, can I freely publish or distribute copies of the book?

No. The theory of the expertizers would be that you are paying for a service, and our completion of the service for you does not transfer the entirely separate copyright in a document that we deliver to you as part of the service. The tangible copy you receive, and the underlying copyright, are different. By contracting with an independent party for a service, you don't automatically acquire rights in the work product of that party. So without a written agreement to the contrary, the author of the certificate for copyright purposes is the expertizer, not you. You're just a customer.

It's no different than getting wedding photos done. You hire an expert photographer, they take pictures and deliver prints to you. This does not transfer the photographer's copyright in the images. A written transfer agreement is required to do that.


Quote:
Nor would I see a reason as to why photos of stamps already printed would be subject to any copyright or trademark laws.


As previously stated, a photo is an independently copyrightable work. However, if the photo image is indistinguishable from the stamp, I agree that copyright will not be available under the "merger" doctrine. This holds that if a particular author's expression (photo) merges with and cannot be separated from an underlying non-copyrightable idea, then copyright isn't available. The merger doctrine supports the idea that my cert won't be registrable because the stamp image doesn't add any protectable authorship.

These are "Copyright 101" fundamentals that have been true for decades.
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Edited by cjpalermo1964 - 01/23/2020 7:01 pm
Pillar Of The Community
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Posted 01/23/2020   9:20 pm  Show Profile Bookmark this reply Add revcollector to your friends list  Get a Link to this Reply
And yet auction houses quote from certs all the time in their descriptions. Without there ever having been a complaint to my knowledge.
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Posted 01/23/2020   9:43 pm  Show Profile Bookmark this reply Add Andyrich74 to your friends list  Get a Link to this Reply
Good stuff CJ. But displaying a copy of a certificate one paid for is quite different from distributing copies of a book, for profit or otherwise. If that were the case, then one could not quote from any book without theoretically "stealing" yet many people quote freely from other authors in other books with (rightly) no violations of copyright infringement. I know parenthetical documentation and so forth, but if your above statement is true; then quoting from said, or any book would thusly be considered stealing, or plagiarism at best unless expressed consent was given; documentation or not. (Unless there is some obscure law that allows one author to use quotes from others with the use of documentation as a way to avoid being accused of being a plagiarist?)

I would disagree that "By contracting with an independent party for a service, you don't automatically acquire rights in the work product of that party. So without a written agreement to the contrary, the author of the certificate for copyright purposes is the expertizer, not you. You're just a customer." My argument would be that by paying for said expertising, said client would indeed have rights to display and transmit said opinion; that is why people pay for expert opinions in the first place, so that they may use said opinion for sale/personal assurance or what have you. According to your statement, someone requesting and thusly receiving a certificate has not right to display or show said cert? (If I am misunderstanding you, please correct me, I don't want to put words in your mouth; just to be clear.) If that were the case, then how do sellers of stamp use a cert as part of the sale?

If what you've stated above is true, PF could theoretically just tell a seller displaying a stamp with a cert said seller paid for to take down their cert off of eBay because they have no right to display or use its contents?

Again, don't want to put words in anyone's proverbial mouth, so please clarify if I misunderstood you; but love the conversation nonetheless. Cheers, and good day!
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Pillar Of The Community
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Posted 01/23/2020   11:59 pm  Show Profile Bookmark this reply Add cjpalermo1964 to your friends list  Get a Link to this Reply

Quote:
And yet auction houses quote from certs all the time in their descriptions. Without there ever having been a complaint to my knowledge.

The lack of enforcement of available rights is a relevant factor in assessing risk associated with creating a public database of certs. It's definitely a factor the developer should consider, but it doesn't mean there is zero theoretical risk.

@Andyrich74:
Your first paragraph veers into the fair use doctrine. It's correct that some use of copyrighted works is sometimes permitted for purposes of news reporting, education and so forth, but a full exploration of that issue is not germane to this thread.


Quote:
I would disagree that "By contracting with an independent party for a service, you don't automatically acquire rights in the work product of that party. So without a written agreement to the contrary, the author of the certificate for copyright purposes is the expertizer, not you. You're just a customer."

Unfortunately it is not a matter of disagreeing in opinions; what I said is settled law, as the Supreme Court so decided in 1989. See Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).


Quote:
If what you've stated above is true, PF could theoretically just tell a seller displaying a stamp with a cert said seller paid for to take down their cert off of eBay because they have no right to display or use its contents?

That's correct, and is consistent with settled law--unless certs are not eligible for copyright, on the basis of insufficient creative authorship, which is why I filed my "test case". We shall see.
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Posted 01/24/2020   5:52 pm  Show Profile Bookmark this reply Add Andyrich74 to your friends list  Get a Link to this Reply
Good stuff, and thanks for the explanation. Looking forward to the results.
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Posted 01/24/2020   10:57 pm  Show Profile Check cfrphoto's eBay Listings Bookmark this reply Add cfrphoto to your friends list  Get a Link to this Reply
I would assume that the owner of a stamp with a certificate could display an image of the stamp and certificate under fair use. Failure to display the certificate when offering the stamp on eBay may reduce the selling price. Displaying an image of the certificate with the stamp does not lower the value of the certificate. Now, if someone displays a certificate in isolation or with a different stamp than the one certified, the copyright owner might well object to use of the certificate image. Stamps with conflicting certificates stay in the reference collection because they don't belong in the philatelic marketplace.

I also sell slides on eBay, but I always add a copyright notice the eBay image. Sometimes scraped images show up on nonprofit web sites, but the image is nowhere close to the quality of the original slide. Some site owners ask for permission before using images.
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Edited by cfrphoto - 01/24/2020 11:00 pm
Pillar Of The Community
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1339 Posts
Posted 01/26/2020   12:04 pm  Show Profile Bookmark this reply Add cjpalermo1964 to your friends list  Get a Link to this Reply
Assessment of fair use in the US is frequently misunderstood or misapplied. Under long-established case law, the courts rule on fair use by considering four factors: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work--whether it is more artistic or fact-based; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Applying these factors to the situation of an eBay or auction merchant displaying a complete certificate in connection with a sales offer could be resolved as follows.

1. The purpose and character of the use - Commercial. Therefore, this factor disfavors the seller.
2. The nature of the copyrighted work - Fact-based (subject to my prior comments about images throwing in a wildcard). Therefore, this factor favors the seller.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole - The entire certificate is used. Therefore, this factor disfavors the seller.
4. The effect of the use upon the potential market for or value of the copyrighted work - Uncertain. This factor would depend on whether the expertizer has an ongoing market for sales of access to the certs. That is, whether after delivering a cert to the original customer, does the expertizer limit access to certificates to those who pay a fee for access, or license its database only to selected parties. So this factor could change over time depending on the behavior of the expertizers.

The result is that the test is either neutral in risk to the seller, or disfavors the seller by 3 factors to 1. If my test case is held copyrightable, then sellers cannot presume that fair use will be on their side. It all depends on the behavior of the expertizers--whether they actually press claims or build a business model around these documents.
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Posted 01/26/2020   12:29 pm  Show Profile Bookmark this reply Add rogdcam to your friends list  Get a Link to this Reply
I would argue that allowing sellers of a stamp to display the stamp's certificate at will is a key component of the expertizers business model given that one of the primary reasons for certificates is to validate a stamp's value. Charging a fee to display a certificate, validate a certificate in an expertizer's database or limiting use to permission based would erode the usefulness and value of the certificate.
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Posted 01/27/2020   1:25 pm  Show Profile Bookmark this reply Add widglo46 to your friends list  Get a Link to this Reply
I wonder if some legal argument can't be made that it is in the public interest to have certificates in a searchable database. Given the indisputable influence that the certifying entities have on the philatelic market, and considering the potential for insider dealings or other manner of corruption, isn't publication of this data by a non-profit organization defendable? How else can they be held accountable?
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Posted 01/27/2020   1:56 pm  Show Profile Bookmark this reply Add rogdcam to your friends list  Get a Link to this Reply
The PSE is a for profit entity. Not sure what influence that has on the argument.
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