Photographs of art works not copyrightable?

[tim_atherton2]

This might be slightly off topic, but I think there are others here

like me who sometimes work photographing paintings for artists (or in

my case museums) and also for publication.

 

I had always assumed that the photographs that were taken of such

artwork was copyright protected as "original" work.

 

I recently discovered this might not be so - I've just been having

some discussion about his and apparently there is a US court decision

that photographs of two dimensional artwork is not deemed an original

work and thus not Copyright protected? Does anyone know anything more

about this?

 

Apparently the decision was in regard to art work that was now Public

Domain, but as I understand it, the argument was photographs of art

work that was still in copyright were thus protected by the copyright

on the artwork (which doesn't help the photographer).

[markci]

<i>

as I understand it, the argument was photographs of art work that was still in copyright were thus protected by the copyright on the artwork (which doesn't help the photographer).

</i>

<p>

That's my understanding as well -- that it's a derivative work, and so the copyright is owned by the painter. Which is as it should be really. After all, it's a COPYright, and you've made a COPY. No different than if somebody copied one of your photos.

[sk_arts]

If I took a scanning back, took a photo of a Warhol is the image mine?

 

If i scanned the Warhol with a flatbed scanner, is the image Andy's?

 

If i took a picture using film of a Warhol is the image mine?

 

If i took that transparency and scanned it in, who's image is it then?

 

My point is a scanning back is the exact same technology as a scanner, only it is mounted in a camera. Clealy if you take an a copywriten image and scan it into a computer, that is a copyright violation.

 

If you take a silver-based film medium, take a photo of a painting and if that slide is then your property, is it when you scan it? Or does it's ownership reverse order back to the original? If using a scanner to scan the original is, then so is a scanning back, and so is scanning a transparency, right?

 

I do not see how silver reproduction is different from CCD, CMOS, PMT, Xerox, or any other type of reproduction. It's the end result which is the reproduction, not how it got there.

[tim_atherton2]

No, in Britain and Canada, if you photograph a painting (for the artist or say a museum) they still own the copyright to the painting (if it's jot old enough to be public domain), but you hold the copyright to the actual phtograph.

 

In that case two different copyrights subsist in the same image. (much as several copyrights can subsist in one music CD - writer, singer, arranger, comopser etc).

 

The argument in this case, apparently, is that the courts deemed that photogrphing a two dimesnionsal art work did not require enough "originality" to lead to that photogrpah being copyrightable (as it still is in Canada and the UK for example). They also differentiated between two dimensional and three dimensional art works - so if you photogtraph a sculpture, that phtograph IS copyright protected.

 

I'm trying to track down the decision and any info about it.

[markci]

Yes, if it's considered a derivative work rather than a copy (and you have permission) then you have copyright in the derivative. Sorry, I misspoke on that. However, the question is, is it a derivative or a copy. I'm not sure that matter is completely settled. Usually derivates works have to show some degree of creativity beyond the original.

[markci]

Here's the decision you're talking about, I think:

 

http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm

[tim_atherton2]

Thanks Mark, just what I had been trying to find.

 

"However, the question is, is it a derivative or a copy. I'm not sure

that matter is completely settled. Usually derivates works have to show some

degree of creativity beyond the original."

 

I think the term in copyright is "originality" rather "creativity" - an "original work" receives copyright protection - and after a quick reading of your link I guess in this case the court has drawn the line at two dimensional works, which is a little curious.

 

another link here too, now I have the case name:

 

http://www.panix.com/~squigle/rarin/corel2.html

[photomark]

The Bridgeman case is mildly interesting to a photographer but very interesting if you

wish to publish a work of art that is old and obviously in the public domain, yet is

held in a private collection or museum. Traditionally, museums have guarded there

collection closely and tried very hard to control the publication of their holdings...they

have a gift shop to run after all. They used to do this by not allowing photography

and licensing photos of the works under the provision that the museum held the

copyright of

the photographic reproductions. The Bridgeman case threw a wrench into this cabal

which is why many museums tried very hard to get the Bridgeman Art Library to

settle.<P>

 

Museums still try to control publication of their public domain works: <A

HREF="http://www.metmuseum.org/education/er_photo_lib.asp">Met Museum

Permissions to Publish</A> Although many museums will say the reason for their

policy is to make sure the works in their collections look their best in publication and

are accurate, it all seems very dubious to me. Public domain means public domain

after all.

[dan_smith]

It is my understanding that this is only a copy. No 'creativity' or 'originality' is involved in a straight copy and it cannot be copyrighted. It is not a derivitave work as you aren't doing anything other than copying the original. Any copyright is still in the hands of the creator of the painting and if his copyright has expired it is up for grabs... public domain. About the only way the museums or artists can control it at this point is to keep people from photographing it.

Would appreciate more informed info from an experienced intellectual property attorney to help us clear this up as much as possible, understanding anything is open to interpretation & dispute at times.

[tedharris]

Copyright law is in a real state of flux right now ...... making any statement beyond

that would be foolish for me ... I am NOT an attorney although I do lecture on the

constitutional basis of coopyright and intellectual property issues. Since legal

thinking does not always follow conventional logic I suggest that any answer offered

by someone other than an attorney who is a specialist in copyright law be taken with

a grain of salt.

[ralph_barker]

Ted - I'd agree about the grain of salt idea, but I'd also apply that to opinions from lawyers - unless the lawyers happen to be justices of the Supreme Court, and one is getting a collective opinion. Any other lawyer is just making a guess, albeit an expert one. ;-)