Hi copee,
You have highlighted a weakness in the law. There is nothing to stop anyone falsely claiming copyright in something they don't actually have any rights in. I suppose that technically they would be committing a fraud or
misrepresentation if someone bought goods or services on the strength of the copyright statement*, but I can't recall a case where this has been argued.
As you say, if someone has copied something without adding anything creative of their own in the process, there cannot be a new copyright in the second work. However many august bodies such as museums do claim exactly that (eg
this example from the British Museum) when they digitize the works in their collections for instance. There is one special case where such behaviour is understandable. That is where a previously unpublished work is first published after any copyright in the original has expired, when something called '
publication right' comes into effect. This gives the publisher a 25 year right, similar to copyright, to authorise all the activities such as copyirng, making available to the public or making adaptations etc which are normally associated with copyright ownership. Since the is no special symbol for this somewhat esoteric right, the © symbol is often employed by way of shorthand.
Scanning something like a newspaper (other than a very old one) without permission is likely to lead to an infringement claim by the
Newspaper Licensing Agency which represents the majority of the newspaper industry in such matters. Even if the scanning is done with permission, the only copyright which would exist is the original one in the paper itself, and that would remain with the publishers.
Photo libraries are slightly different in that they will have entered into a contract with their contributing photographers to market the photographs. Conventionally the photographs are often then marked as something like '© GettyImages' in order to draw attention to two separate facts, namely that the image is copyright, and that
Getty is the agency which deals in the work. In some cases where Getty has commissioned the photographs, the contract may well assign copyright to Getty and so they are the legal owners of the copyright. However in the majority of where the work has been submitted speculatively without an assignment, and the photographer has asserted his/her right to be credited as the author, then theirs is the name which should appear alongside when the photograph is published. Just a quick glance at the newspapers and magazines which use stock photography would show this rarely happens and the agency is much more likely to be
quoted as the source. In such circumstances, the © symbol should not be used because it is misleading. Unfortunately it is not unlawful so it continues to happen.
Unfortunately under the Copyright Designs and Patents Act only a copyright owner or an exclusive licensee may bring a claim for infringement as a way of challenging another's false claim. Clearly this can't be used where the underlying work itself is out of copyright (since there is no longer a copyright to own or license). This means that there is no easy way for a third party to challenge some of the more egregious claims to copyright other than by undertaking an act which would, if the copyright was legitimate, amount to infringement, and then waiting to be sued in order to argue the case before a court. This is in contrast to both trade mark and patent law, where an alleged false or invalid claim can be
challenged by anyone who has the resources to commence the necessary action.
*The problem with going down the misrepresentation route is that it does not involve the criminal law and so only someone who has suffered materially (say in financial terms) is likely to commmence an action. So if there is no financial loss involved, while there may by judgment in favour of the claimant, there is no real penalty for the defendant, (ie the person making the false claim) and so there is little deterrent other than possibly some bad publicity.