The Jim Crow Museum of Racist Memorabilia has an interesting discussion on the copyrightability of segregation signs.
Q: Does anyone own copyrights to Jim Crow Era segregation signage, such as the famous “Whites Only” or “Colored Entrance” signs?
The answer begins correctly, then veers into wrong/deep theoretical water. It correctly invokes the short phrases exclusion, then incorrectly invokes the useful article doctrine in claiming that “the signs would have to have artistic merit beyond their simple function to be copyrighted,” though the related doctrines of merger and the idea/expression distinction serve similar functions for informational artifacts. Finally, there’s this statement:
Segregation signs can be copyrighted if they are used, or can be claimed as being used, as art or as artistic statement beyond their original function. In the mid-to-late 1990s, African-American artist Marchel’le Renise Barber created a line of reproduction Jim Crow Era segregation signs and sold them in her store “Martha’s Crib”. She copyrighted them as the Martha’s Crib Jim Crow Sign Series: “Barber conscientiously marks her own signs as reproductions. Although she meticulously imitates the lettering, shapes, colors, and borders of the originals, she stamps her versions ‘Historical Reproduction’ and sells them at the bargain rate of ten dollars apiece. She also stamps them with the name of her store, the copyright symbol, and current date. Her signature replaces that of the companies that commissioned and produced the originals… the date of the ordinance on the originals is displaced by the date of the copyright… it is not the original object or language, but the copy that is copyrighted, reserving to Martha’s Crib the exclusive right to continue to make copies. The copy, apparently, is an original, a form of intellectual property, whose originality resides in its conception and execution as a copy.”
So, original Jim Crow Era segregation signs are not copyrighted in and of themselves, but reproductions or originals used in an art piece or installation can be copyrighted so long as they are used in an original construction or context beyond their original function.
While the author cited the Copyright Office for the short phrases/useful articles points, he cites Brian Norman, Representing Segregation: Toward an Aesthetics of Living Jim Crow, and Other Forms of Racial Division SUNY Press 2012 pp 29-30 for this last claim. But putting a new signature on a public domain or uncopyrightable work won’t make that work copyrightable. Amy Adler’s work on the functions of appropriation art makes clear that these are recognizable art objects and works of expression, even if they defy interpretation; whatever they are, they aren’t “the same” as the originals despite their near-identicality. Still, a work can be a work of art without being copyrightable. But I’ll admit, I’ve had students argue to the contrary, allowing Duchamp to be the author of his famous Fountain.
Also, to the extent the signs are assembled into an installation that counts as a fixation, the installation itself may well be a copyrightable compilation. That just doesn’t confer any rights in the individual signs themselves.
H/T Zach Schrag.