Copyrighting T-Rex?

Here's an interesting case I started to write about, and then forgot to finish. But I'm still going to keep an eye on it. The Black Hills Institute of Geological Research is a private company in South Dakota that specializes in selling prepared fossils and casts. They claim that they loaned some Tyrannosaur bone casts to a Montana company called Fort Peck Paleontology, who never returned them and has been selling their own copies of these casts. BHIGR is suing.

Now I don't know what the terms of the loan were, and since BHIGR is a professional and commercial operation, you'd think they would write these restrictions into any contract they made. If they didn't, that's their mistake. But what intrigues me is that the lawsuit is claiming copyright infringement, not breach of contract. They are claiming they own a copyright on these bone casts.

As a general rule, you can't copyright a fact. The landmark case here is Feist v. Rural (1991), where the US Supreme Court held that a company could not claim copyright of its list of names and phone numbers. The particular medium, method of presentation, any commentary or editing - those can all be copyrighted as creative work. But the bare facts - the list of numbers - could not.

So can BHIGR claim that their bone casts are original, creative works? The president of the company, David Larson, claims that making dinosaur bone casts requires "a blend of scientific and artistic creativity," but otherwise emphasizes the amount of time and effort that they require. That smacks of the "sweat of the brow doctrine," which claims that amount of sheer labor that went into a production justifies the creator's monopoly over the product. That's an attractive, seemingly even a common sense, doctrine, especially to producers. But since Feist v. Rural, it's not the law in the US.

The pitfall for BHIGR is that the creativity lies mainly in their methods, not in the finished product. In fact, it's hard to imagine that they could be successful selling products they claimed were artistic representations of a dinosaur bone, rather than faithful and exacting reproductions of the original. Their website emphasizes, on the one hand, that "Perhaps the most important factors required in making fine molds and cast replicas are ingenuity and creativity." On the other hand, they also boast that they "have successfully developed new methods and materials for molding fossil specimens and producing cast replicas that retain the look and feel of the original fossils." That makes it sound like the value of the casts is not in their artistry, but in their adherence to fact.

I might be looking at this wrong. Perhaps the best example is a photograph of a building: you can still copyright the photograph, even though it's a representation of an uncopyrightable fact. If so, I look forward to the ruling setting me straight.

[Post script] It occurs to me that another comparison that might work in BHIGR's favor would be translations of old texts, which are original works for copyright purposes. Thus the New International Version translation of the Bible is under full copyright, despite the great age of the Bible itself. The 400-year-old King James Version, of course, is in the public domain.]