Can the layout of a printed work be subject to copyright?

Question

This is a follow-on to How can I determine what elements of a work are covered by a copyright mark? which dealt with sheet music for public domain compositions that, nevertheless, claimed copyright protection. The current answer points out that editorial decisions and modifications to a public domain work are certainly subject to copyright, but intriguingly suggests, "Even the layout and typography or engraving are subject to copyright...."

If all "layout and typography" are subject to copyright then any writing or printing of otherwise public domain content is protected. But it seems unlikely that the "threshold of originality" can be surmounted so trivially. (Answers to related question Copyright status of restored works indicate that mere "restoration" is only afforded protection in countries that follow a "Sweat of the brow" rule.)

So, disregarding essential creative content like words or notes that we normally consider as subject to copyright (and which can pass into the public domain long before interest in a classical work fades): What visual elements of a printed work are eligible for copyright protection?

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Consideration of the following examples might illuminate the question, but need not be explicitly addressed in an answer.

1. If I hand-write a verse of Shakespeare, can I claim copyright on my manuscript because my handwriting is original?

2. If I type a chapter of the King James Bible can I claim copyright on my pages because of where I decided to put carriage returns or tab stops?

3. Can I claim copyright in my transcript of John Locke because of my "original" selection of font, pitch, and typographical layout?

4. If, as suggested above, I transcribe a composer's original score, is my transcription protected without satisfying any other creative criteria? If not, what criteria suffice?

   • If I make it more legible and alter the layout simply because I use computerized notation software? (This would seem to be analogous to using a word processor to transcribe words written or printed more than a century ago.)

   • If in some place I use a different but musically equivalent notation? (This could be considered analogous to using a more modern spelling, or writing "e.g." instead of "exempli gratia.")

   • If I make changes that are literally different but practically insignificant – e.g., where the composer wrote "Lento" I write "Adagio?" (One might equate this to substituting synonyms for some words in an essay.)

   • If I make changes that qualify as corrections? (In the writing analog, I correct typographical or grammatical errors.)

   • If I add or modify notation that is musically significant – e.g., slurs or ornaments?

   • If I annotate musical dynamics – which may have been implied and even widely understood among modern performers – not found explicitly in the original score? (E.g., forte, crescendo, ritardando, staccato.)

   • If I annotate fingerings or bowing instructions, which when significant are generally obvious to an experienced musician but which can be helpful to a less skilled player?

Answer 1

Maybe

Copyright subsists in "original works"; this leads to the concept of the Threshold of Originality. The case law is long and varied both by time and jurisdiction.

1. If I hand-write a verse of Shakespeare, can I claim copyright on my manuscript because my handwriting is original?

In the UK in the early-20th century, yes; Walter v Lane is on point here. However, US courts explicitly rejected the "sweat of the brow" doctrine in that decision so not in the US at any time and this would not appear to be good law in the UK today but it hasn't specifically been overturned.

This assumes that the alleged infringement is a copy of the literary work in the text. However, if your penmanship is such that the work meets the threshold for an original artistic work then a copy of that would be infringing.

2. If I type a chapter of the King James Bible can I claim copyright on my pages because of where I decided to put carriage returns or tab stops?

In most jurisdictions, this would not appear to meet the threshold of originality.

However, if you were to go further and provide footnotes or commentary then these would be copyrighted (obviously) and the specific juxtaposition of these with the original text would also be protected.

3. If, as suggested above, I transcribe a composer's original score, is my transcription protected ...

They would have to be assessed on a case by case basis. This would include the significance of the changes in both extent and substance, so, as a first blush approximation: no (this is just a transcription), no (this is just a translation), no (ditto), probably (in music at least - is it an "error" or was it composer intent?), yes, yes (even if you are merging to original works into one, your choices are original) and yes.