Peter Hirtle, Senior Policy Advisor at the Cornell University Library, wrote me a message commenting on the piece and raising a point that I had elided (reproduced with permission):
Dear Dr. Cayless:
I read with great interest your article on “Digitized Manuscripts and Open Licensing.” Your arguments in favor of a CC-BY license for medieval scholarship are unusual, important, and convincing.
I was troubled, however, to see your comments on reproductions of medieval manuscripts. For example, you note that if you use a CC-BY license, “an entrepreneur can print t-shirts using your digital photograph of a nice initial from a manuscript page.” Later you add:
"Should reproductions of cultural objects that have never been subject to copyright (and that would no longer be, even if they once had) themselves be subject to copyright? The fact is that they are, and some uses of the copyright on photographs may be laudable, for example a museum or library funding its ongoing maintenance costs by selling digital or physical images of objects in its collection, but the existence of such examples does not provide an answer to the question: as an individual copyright owner, do you wish to exert control how other people use a photograph of something hundreds or thousands or years old?"
There is a fundamental mistaken concept here. While some reproductions of cultural objects are subject to copyright, most aren’t. Ever since the Bridgeman decision, the law in the New York circuit at least (and we believe in most other US courts) is that a “slavish” reproduction does not have enough originality to warrant its own copyright protection. If it is an image of a three-dimensional object, there would be copyright, but if it is just a reproduction of a manuscript page, there would be no copyright. It may take great skill to reproduce well a medieval manuscript, but it does not take originality. To claim that it does encourages what has been labeled as “copyfraud.”
You can read more about Bridgeman on pps. 34-35 in my book on Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, available for sale from Amazon and as a free download from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495365.
Peter is quite right that the copyright situation in the US, at least insofar as faithful digital reproductions of manuscript pages are concerned, is (with high probability) governed by the 1999 Bridgeman vs. Corel decision. So it is arguably best practice for a scholar who has photographed manuscripts to publish them and assert that they are in the public domain.
I skimmed over this in my article because, for one thing, much of the scholarly content of the symposium dealt with European institutions and their online publication (some behind a paywall—sometimes a crazily expensive one) of manuscripts, so US copyright law doesn't necessarily pertain. For another, I had in mind not just manuscripts but inscriptions, to which—to the extent that they are three-dimensional objects—Bridgeman doesn't pertain. Finally, while it is common practice to produce faithful digital reproductions of manuscript texts, it is also common to enhance those images for the sake of readability, at which point they are (may be?) no longer "slavish reproductions" and thus subject to copyright. The problem of course, as so often in copyright, is that there's no case law to back this up. If I crank up the contrast or run a Photoshop (or Gimp) filter on an image, have I altered it sufficiently to make it copyrightable? I don't know for certain, and I'm not sure anyone does. So on balance I'd still argue for doing the simple thing and putting a Creative Commons license (CC-BY is my recommendation) on everything. This is what the Archimedes Palimpsest project does, for example, who are arguably in just this situation with their publication of multispectral imaging of the palimpsest. And they are to be commended for doing so.
Anyway, I'd like to thank Peter, first for reading my article and second for prodding me into usefully complicating something I had oversimplified for the sake of argument.