A book published in 1875 is in the public domain.

A scan of it possibly being copyrightable in certain jurisdictions by "sweat of the brow" logic is not copyrightable in every jurisdiction.

But if there was a simple contract written and agreed to, that stated that the person being given a PDF or JPEG copy of the 1875 book was being given these files to do with what they wished, with the caveat being they couldn't reproduce them in whole or substantial part, or otherwise proliferate the scans to others (whether for free or profit, whether citing the scanning source or otherwise)...

Would that contract be able to stand up in a court of law (namely US), that while the images are of a book in the public domain, and not copyrightable by "sweat of the brow" and thus outside of copyright entirely, and in theory one could do with them whatever one wanted...if there was a contract whereby one person agreed NOT to exercise the right of public domain protection, is that valid?

  • Legally, the issue is whether the first sale doctrine overcomes the contract. I think it does, but I am not confident enough about that to provide an answer.
    – ohwilleke
    Mar 11, 2022 at 19:11

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A copyright suit would fail because, as you say, there is no copyright.

However, a suit for breach of contract would likely succeed. You promised not to do something and then you did it. That is a clear breach of the contract you entered and would entitle the other party to sue for damages. Admittedly, such damages are likely to be nominal at best because no real loss has been suffered but the suit would probably succeed.

  • 2
    Such a contract might well be held void under the "misuse of copyright" doctrine. This deserves a full answer, which i may write later. Apr 10, 2022 at 21:53

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