A Copyright Lawsuit Over Dinosaur Bones

from the public-domain? dept

Tue, Dec 14th 2010 4:13am — Mike Masnick

TheOldFart alerts us to this bizarre case of a copyright lawsuit over dinosaur bones. Apparently, a research institute, The Black Hills Institute of Geological Research, claims that it made a casting of some famous T-Rex bones (the actual bones are at the Field Museum in Chicago). It then copyrighted the casting. It's now suing Fort Peck Paleontology, to whom the Black Hills Institute says it lent the castings a few years ago -- never to receive them back. However, it's upset that Fort Peck is now selling replica bones based on the castings, and Black Hills says that these are "unauthorized" copies. Of course, I'm still trying to figure out how you can copyright the casting, seeing as the entire thing is based on the bone -- an artifact of nature.

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Filed Under: copyright, dinosaur bones
Companies: black hills institute, fort peck paleontology

35 Comments

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musically_ut (profile), 14 Dec 2010 @ 4:37am

They had hit rock bottom
... and now they are feverishly digging to go even deeper.
Literally.
~ musically_ut
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abc gum, 14 Dec 2010 @ 4:42am

Clearly, the Black Hills Institute of Geological Research is guilty of making available.
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Anonymous Coward, 14 Dec 2010 @ 4:43am

Dinosaurs suing over dinosaurs.

I wonder if they've sued the T-rex species for infringement yet.
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John Duncan Yoyo, 14 Dec 2010 @ 5:00am

So they are suing for copying a copy. I don't doubt that this will be challenged by the RIAA. They sure wouldn't want this precedent out there.
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Anonymous Coward, 14 Dec 2010 @ 5:12am

You pirate scum killed the dinsaurs!
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Anonymous Coward, 14 Dec 2010 @ 5:16am

Home casting is killed the dinosaurs, and it's illegal.
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DS, 14 Dec 2010 @ 5:16am

If you make a casting of the 'counterfit' bones, would that be OK? :)
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LumpyDog (profile), 14 Dec 2010 @ 5:18am

Be sure to tip your waitress.
You must have dug deep to come up with this story. I mean, it's certainly old news. Ancient, even.

Thank you, I'll be here all week.
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pegr, 14 Dec 2010 @ 5:39am

Not a creative expression
Nope, no copyright here. It's not a creative expression. Nor is it a creative impression.

;)
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tebee (profile), 14 Dec 2010 @ 5:54am

Hasn't the copyright expired yet?
Since when did the copyright term become death plus 65 million years?

Seriously though, I thought you couldn't copyright a 3-d object unless it is contains some original artistic elements , like a sculpture or a building.

A casting is a copy in itself, there's nothing original about it, it may need some technical skill to make a good copy but I did not think that was copywritable.(is that a word?)
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Chronno S. Trigger (profile), 14 Dec 2010 @ 6:16am

Prior art
Didn't mother nature take the first casting of that bone? That's how fossils are made.
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Ted E. Bear, 14 Dec 2010 @ 6:34am

You don't know the half of it...
Dig a little deeper into the entire story of Sue the T Rex and you would see that this is just par the course. As a teaser....How about an arrest and conviction because a large sum of money passed through an Indian reservation and the couriers didnt report to the gov't that they were taking a large sum of money out of the country lol
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The Groove Tiger (profile), 14 Dec 2010 @ 6:39am

Copying dinosaur bodies with an unauthorized cast is exactly like stealing the Flintmobile!
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NullOp, 14 Dec 2010 @ 6:53am

No, no, no...
Only God can copyright dinosaur bones!
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SmartAss, 14 Dec 2010 @ 6:56am

Dem Bones
Clearly the casts are a derivative work and can not be copyrighted!
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Nick, 14 Dec 2010 @ 7:28am

Amazing
If this wasn't really happening, I'd say this is the greatest hypothetical for copyright lawyers.

It does sound absurd that anyone could copyright dinosaur bones. However, they are in the public domain, just like Mozart's music. Obviously, I could play any of Mozart's songs, record it, and copyright my recording. Though I don't get to own Mozart's song (anyone else could record the same song) I do get to stop people from using my particular version of it. Similarly, I could see copyright covering the dinosaur bone copies.

What's neat here is that it's not about copying the bones per se, but they've stolen the molds from which to make the bones! Are the molds useful articles (eg. they only to serve to create more bones) or are they art in themselves (eg. think photo negatives). If they're useful, no copyright; if art, then copyright.

There's also the Visual Artists Rights Act (VARA, 17 usc 106A), which is as close to moral rights that US law gets. There are a few cases under that act that specifically address the issue of molds used to create sculpture, which say that molds can be covered because they can be considered art in and of themselves.

Predicted winner of this case: the lawyers.
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Anonymous Coward, 14 Dec 2010 @ 7:53am

It would help to see a copy of any complaint that may have been filed. From the text of the article it sounds less a copyright-based suit and more an unfair competition and conversion suit.

Admittedly, even I scratch my head trying to figure out if there is any aspect of making a cast replica of a bone that can result in an original work of authorship.
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interval (profile), 14 Dec 2010 @ 8:05am

Re:
In this age of 3d printers I wonder if we'll start seeing DMCA take-downs for sites sharing form files that describe how to print copies of things to those printers.
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Jason, 14 Dec 2010 @ 8:49am

Re: They had hit rock bottom
No, with all this piracy there's no incentive for dinosaurs anymore.
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harbingerofdoom (profile), 14 Dec 2010 @ 9:13am

Re: Re: They had hit rock bottom
the horror!
think of it.... all these fossilized dinosaurs will be out of work if we dont do something about protecting their intellectual property rights... why the entire museum industry could be dragged down by this... imagine it, no one will be making any history anymore!!!
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Anonymous Coward, 14 Dec 2010 @ 9:14am

The title is misleading, because there is no copyright issue on the bones themselves.

Creating the castings, which are expensive to do properly and is a unique work is an issue. They are unique to the people who made them, because another casting would not be exactly the same (even taken from exactly the same bones, as it is not a 100% exact copy).

They are not claiming copyright on the bones, they are claiming rights to what is made (without permission) with the castings they created, which would appear to be very much in their rights.

Trying to make it sound like someone is trying to copyright million year old bones is amusing, but highly misleading.
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Anonymous Coward, 14 Dec 2010 @ 10:26am

That sounds like a recipe for disaster for the plaintiff. Either they admit that their bone castings contain no original expression, and are therefore not protected by copyright, or they admit that their bone castings don't accurately capture the bones they found, and risk loss of reputation in their market (I assume their customers want accurate bone castings).
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Anonymous Coward, 14 Dec 2010 @ 10:31am

Re: Amazing
Your new recording of MOzart's work will contain some original expression (your playing, recording, editing, mixing, etc.), but what is the original expression contributed to the molds? I assume they are intended to be faithful reproductions.
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Anonymous Coward, 14 Dec 2010 @ 10:39am

Re:
Whether or not the castings are expensive to make or "unique" is not relevant. It is hard to imagine what original expression they contributed to the castings.
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MD, 14 Dec 2010 @ 10:45am

Creative Boning
Making a cast of a 3-D object is as creative as making a 2-D photo of a view. Eactly how much creativity goes into one VS he other - well, this is where lawyers get rich. A photographer can use composition, lighting, f-stop, POV and angle, contrast, etc. and be creative; but a total lack of any consideration of any such factors in a random snapshot is still a copyright expression. Is a security cam footage - set it up and let it tape a public view for a decade - still copyright? We have printed material - like phone books - where the material also cannot be copyright. Like a photographer, they could argue that the precise selection of the rare item(s) to be rendered/cast is the artistic input.

From such details are lawyers' island vacation homes built.
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Anonymous Coward, 14 Dec 2010 @ 10:50am

"but a total lack of any consideration of any such factors in a random snapshot is still a copyright expression"

I don't think that's true at all.

"Making a cast of a 3-D object is as creative as making a 2-D photo of a view."

What would the original expression be when the (presumed) goal is to faithfully recreate an item? Basing it solely on the selection of the item in question is an awfully thin reed to base a case on.
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Anonymous Coward, 14 Dec 2010 @ 10:50am

Re:
Huh. This was intended as a reply to "Creative Boning"
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Anonymous Coward, 14 Dec 2010 @ 11:50am

theft
uhhmm why copyright? isn't "stealing" (in a non-riaa way) a better way to describe their use of the castings?
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Ben, 14 Dec 2010 @ 9:16pm

you guys have this all wrong.
The T-rex should be sueing the guys that made the original copy. It's clearly in violation of its personal image rights.
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Michael, 15 Dec 2010 @ 4:19am

Re:
He is too busy with all of his defamation lawsuits for being portrayed as a violent killing machine.

I'm pretty sure the ones in California only ate tofu.
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Nick, 16 Dec 2010 @ 9:52am

Re: Re: Amazing
The original expression would be me actually making the reproduction. A faithful reproduction takes enough creativity.
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Timothy Larson, 7 Dec 2011 @ 3:02pm

Misinformation
Whoever posted this article needs to dig deeper into the facts. BHI initially sued FPPI for incorporating portions of "STAN T. rex" into their casting of "Peck's Rex". The parts of STAN were loaned to FPPI with a contract stating that the casts were to be used for reference only and copies may not be made. Copies of the STAN material were made and incorporated into casts of Peck's Rex which were sold, this not only violates copyright but is a violation of the specimen loan agreement as well. As for the SUE material: BHI collected and was able to partially prepare SUE. While BHI was preparing SUE, molds and casts were made (BHI owned the fossil at the time). Nature cannot be copyrighted, but sculpture can be. Fossil preparation includes sculpting the matrix away from the bone (this requires skilled hands to not damage the bone), rebuilding the bones (sometimes a single bone is scattered over several square feet, all the pieces must be collected), filling cracks in the bone (without this, another form of sculpture, the bones would fall apart, their stabalization is also copyrightable), sculpting missing portions (nearly every fossil has sculpted parts, or is composited from multiple specimens. Even this compositing is copyrightable). BHI holds copyrights to the preparation of all portions of SUE's fossils that were prepared by BHI staff. This is what allows BHI to continue to cast and sell certain SUE elements, such as the right arm. This lawsuit is to recoup losses from FPPI's sale of Peck's rex which resulted in a loss of sales for BHI. And to make a mold from a cast you are also violating the molder's copyright as molding takes a certain degree of skill to produce a good cast. Research next time!
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Timothy Larson, 7 Dec 2011 @ 3:03pm

Re:
No, you are copying a sculpture then.
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Timothy Larson (profile), 7 Dec 2011 @ 3:08pm

Re: You don't know the half of it... and you certainly don't
Research this, there was never an arrest made! I don't even need to comment on the rest because your first statement is a falacy.
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Federico (profile), 13 Sep 2016 @ 10:55am

Stone skulls and the Italian ministry
Hardly unprecedented. The Italian Ministry of culture sued a company (Stoneage S.r.l.) for producing a *drawing* of a half-hidden skull fossil. It took the supreme court to reject such a bizarre claim: Cass. civ. Sez. VI - 1 Ordinanza, 23-04-2013, n. 9757 (rv. 626365), based on the sad state of pseudo-copyright laws on cultural heritage in Italy: https://meta.wikimedia.org/wiki/Italian_cultural_heritage_on_the_Wikimedia_projects
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