Richard Bridge:

The usual disclaimers apply: I am not a lawyer, this post is not legal advice and does not establish a lawyer-client relationship, etc., etc.

The U.S. copyright office will refuse to register a claim of copyright in a "mere reprint", according to stuff I have seen. And I have also heard that there is no US protection for typeface. That would seem to rule out "pictorial work" status for anything except very artsy layouts, such as when variations in boldness and spacing of very fine print are used to make the whole page appear from a distance as a picture. If the picture were original but the text was PD in such a case, presumably then one could copy the text, but not in such a way as to reproduce the picture. That's the only hypothetical I can imagine under US copyright law that would come close to having the effect of the UK's layout-copyright. (See below for remarks on trade-dress law).

A recent case in the Southern District of New York held that photographic reproductions of public domain works of art, if they faithfully reproduce the originals (rather than being interpretive transformations) are not original and are not the subject matter of copyright. This case was decided twice, once under UK law and once under US law, and reached the same result both times. The case was called Bridgeman Art v. Corel, and I can get a cite for you if you like. Another recent case in the Second Circuit, Matthew Bender v. West, might also be relevant.

So as near as I can figure, under US copyright law one can make a straight photocopy of an entirely public domain work, as long as no original matter is copied (such as original footnotes) and sell it in direct competition with the publisher whose work is copied, though I suppose most competitors would scan the text and change the font and layout -- very simply done with modern computers -- to fit their own tastes in such matters. In a few very special cases involving "time sensitive" matter, state unfair-competition law might give the first publisher a cause of action, but I don't see how music or literature could be "time sensitive". Trademark and trade-dress law in some cases might complicate copying. Publishers who sell Beatrix Potter books in competition with Warne are required, I think, or at least strongly advised, to make their editions a different size, and give them different covers, from the Warne editions, since otherwise Warne can complain that the competitor is trying to confuse buyers as to the source of the competing editions--trying to pass the competing editions off as Warne editions. Assuming I'm reading the law right on this point (see disclaimer above), the trade-dress law in cases like this might have a similar effect to the UK's "published edition" copyright, mightn't it?

T