when a copyright lapses into the public, is the work reproduceable ?
Jack
Can I reproduce and sell a reproduction of a work whose copyright has
lapsed into the public domain (in this case a poster print of a
lithograph) ??
Thank you,
Jack
Arnoud Galactus Engelfriet
Jack <jack_p...@yahoo.com> wrote:
>Can I reproduce and sell a reproduction of a work whose copyright has
>lapsed into the public domain (in this case a poster print of a
>lithograph) ??
There may very well be a copyright on the poster print, because
of the way the depiction on the poster was made. In that case
you cannot reproduce the poster without the maker's permission.
Arnoud
--
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Jack
> In article <209b7e58.03082...@posting.google.com>,
> Jack <jack_p...@yahoo.com> wrote:
> >Can I reproduce and sell a reproduction of a work whose copyright has
> >lapsed into the public domain (in this case a poster print of a
> >lithograph) ??
>
> There may very well be a copyright on the poster print, because
> of the way the depiction on the poster was made. In that case
> you cannot reproduce the poster without the maker's permission.
>
> Arnoud
What if the maker is dead ? The copyright was in 1930, renewed in
1958, and has since lapsed into the public domain.. I did a copyright
search on the title of the poster and only the "words" were under
copyright, not the "poster"
thank you,
Jack Posemsky
Lee Hollaar
> The copyright was in 1930, renewed in 1958, and has since lapsed
> into the public domain.
Based on those facts, the work will be protected by United States
copyright until the end of 2025. When the Copyright Act of 1976
took effect on January 1, 1978, the copyright on all works then
under copyright was extended to 75 years. That was extende
another 20 years under the Sonny Bono Copyright Term Extension
Act, for a total term of 95 years.
See the Copyright Office's Circular 15a on Duration of Copyright:
http://www.copyright.gov/circs/circ15a.html
Roger Schlafly
> What if the maker is dead ? The copyright was in 1930, renewed in
> 1958, and has since lapsed into the public domain.. I did a copyright
> search on the title of the poster and only the "words" were under
> copyright, not the "poster"
Even if dead, he could have heirs. But if the art is now in the public
domain, and the poster is a straight copy, then you can copy it all
you want.
Arnoud Galactus Engelfriet
The maker of the poster will most likely argue that his
reproduction has artistic merit and thus deserves
copyright protection. I understand US lawsuits are very
expensive, even if you're in the right, so it may be
advisable to find an undisputed public domain source.
Arnoud Galactus Engelfriet
Jack <jack_p...@yahoo.com> wrote:
>gala...@stack.nl (Arnoud "Galactus" Engelfriet) wrote in message news:<bi805g$1vov$1...@toad.stack.nl>...
>> In article <209b7e58.03082...@posting.google.com>,
>> Jack <jack_p...@yahoo.com> wrote:
>> >Can I reproduce and sell a reproduction of a work whose copyright has
>> >lapsed into the public domain (in this case a poster print of a
>> >lithograph) ??
>>
>> There may very well be a copyright on the poster print, because
>> of the way the depiction on the poster was made. In that case
>> you cannot reproduce the poster without the maker's permission.
>
>1958, and has since lapsed into the public domain..
Are you referring to the copyright on the poster or on the
lithograph?
It is very well possible to have a copyrighted reproduction
of a public domain work. If I photograph a 17th century
painting, I need to put a lot of artistic effort in the
set-up, lighting and so on to get a good photo. That is
enough to give my photo copyright protection, even though
I'm photographing a public domain work.
>I did a copyright
>search on the title of the poster and only the "words" were under
>copyright, not the "poster"
I do not understand this. What "words" were under copyright
and what do they have to do with a poster of a lithograph?
Isn't a lithograph a visual work of art using some
printing technique?
Isaac
What kind of search could rule out something being protected by
copyright?
Isaac
Roger Schlafly
> of a public domain work. If I photograph a 17th century
> painting, I need to put a lot of artistic effort in the
> set-up, lighting and so on to get a good photo.
No, artistic effort is not necessary. Some technical skill in the
operation of a camera may be needed, but the goal is simply to
copy the original, not create a new work of art. You don't get
a copyright just because you know how to turn a bright light on
or line up a camera.
Isaac
I think you two are talking past each other. If the goal is to
make a copy, the result may not be a creative work, but if the
actual result is appreciably different from the original because
of the lighting or camera angle chosen by the copier, then the
result can be a creative work.
I suspect that most photographs of paintings are creative works.
Isaac
Arnoud Galactus Engelfriet
One in which you find a declaration from the author dedicating
the work to the public domain, or a death certificate indicating
he's dead for more than 70 years?
Arnoud Galactus Engelfriet
Roger Schlafly <rog...@mindspring.com> wrote:
>"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote
>> It is very well possible to have a copyrighted reproduction
>> of a public domain work. If I photograph a 17th century
>> painting, I need to put a lot of artistic effort in the
>> set-up, lighting and so on to get a good photo.
>
>No, artistic effort is not necessary.
It is necessary to have the photo qualify for copyright protection.
The artistic effort is what makes the photo an original and
creative work.
>Some technical skill in the
>operation of a camera may be needed, but the goal is simply to
>copy the original, not create a new work of art.
I don't know whether that is the case for the OP, but most photos
of old paintings involve a lot of effort to get everything right
and to capture the painting well. And that creative effort is
what makes it more than "simply copying the original".
>You don't get
>a copyright just because you know how to turn a bright light on
>or line up a camera.
Actually, you do. The trick is knowing where and when to put up
which light, where to line up the camera and how long to
expose the film. That's all creative effort.
Isaac
> In article <slrnbkiec...@latveria.castledoom.org>,
> Isaac <is...@latveria.castledoom.org> wrote:
>>On Sun, 24 Aug 2003 20:47:43 +0000 (UTC), Arnoud "Galactus" Engelfriet
>><gala...@stack.nl> wrote:
>>> In article <209b7e58.03082...@posting.google.com>,
>>> Jack <jack_p...@yahoo.com> wrote:
>>>>I did a copyright
>>>>search on the title of the poster and only the "words" were under
>>>>copyright, not the "poster"
>>>
>>> I do not understand this. What "words" were under copyright
>>> and what do they have to do with a poster of a lithograph?
>>> Isn't a lithograph a visual work of art using some
>>> printing technique?
>>
>>What kind of search could rule out something being protected by
>>copyright?
>
> One in which you find a declaration from the author dedicating
> the work to the public domain, or a death certificate indicating
> he's dead for more than 70 years?
Okay. Although in this case the death certificate thing isn't possible
since the work was copyrighted in 1930.
Isaac
Mike Brown
>>domain, and the poster is a straight copy, then you can copy it all
>>you want.
> The maker of the poster will most likely argue that his
> reproduction has artistic merit and thus deserves
> copyright protection.
Under the facts presented, the poster is still under copyright
registration, as several others have said (although it isn't clear from
the statement whether it is the registration for the lithograph or the
poster which was renewed in 1958).
That aside, there was a case not too long ago in which a library was
claiming copyright in their reproductions of "old masters" in their
collection. They lost. The court held that there is no copyright in
"slavish copies" of public domain originals.
If the poster added anything to the lithograph, however, no matter how
small, that addition would be under copyright. If the original
lithograph is truly public domain (say, it was published before 1922)
then you could reproduce the original freely - forget the poster
entirely and go to the source.
--
Michael F. Brown
Registered Patent Attorney No. 29,619
Mike Brown
> make a copy, the result may not be a creative work, but if the
> actual result is appreciably different from the original because
> of the lighting or camera angle chosen by the copier, then the
> result can be a creative work.
That is true, in the case of three-dimensional works. Photographs of
such works inherently require a degree of transformative effort. There
was a case of photographs of Rodin's "Thinker" being accorded copyright
protection because of the selection of lighting, camera angle,
background, etc.
> I suspect that most photographs of paintings are creative works.
There, I think you're wrong, or, at least, however creative they may be
they're not protectable by copyright independent of the underlying work.
Most photographs of paintings aim to be faithful reproductions of the
paintings, and as such, are not independently copyrighted.
"Absent a genuine difference between the underlying work of art and the
copy of it for which protection is sought, the public interest in
promoting progress in the arts -- indeed, the constitutional demand
[citation omitted] -- could hardly be served. To extend copyrightability
to minuscule variations would simply put a weapon for harassment in the
hands of mischievous copiers intent on appropriating and monopolizing
public domain work. ... The requisite "distinguishable variation,"
moreover, is not supplied by a change of medium, as production of a work
of art in a different medium cannot by itself constitute the originality
required for copyright protection." Bridgeman Art Library Ltd. v. Corel
Corp. (DC SNY) 50 USPQ2d 1110 (2/18/1999)
Paul Wolff
<br...@bpmlegal.com> writes
>> I suspect that most photographs of paintings are creative works.
>
>There, I think you're wrong, or, at least, however creative they may be
>they're not protectable by copyright independent of the underlying
>work. Most photographs of paintings aim to be faithful reproductions of
>the paintings, and as such, are not independently copyrighted.
There's clearly a difference between US and UK 'rules' for bringing
copyright into existence here. I think it is correct to say that in the
UK, while (in order to attract copyright) the work needs to be in the
category of artistic works, which necessarily includes photographs, the
actual artistic quantum or merit is immaterial; if the author has
expended original skill and labour in the creation of the [photograph],
as by the lighting conditions and so forth (and making a good
photographic copy of a painting is really not easy, taking account of
colour balance, surface reflectivity and so on), copyright in the
original photographic copy will result.
Note that it is the expenditure of creative effort that is protected,
not the artistic input. The idea is that others should not get a free
ride.
I don't know if the other European states follow the US or UK line, or a
third way (forgive that phrase).
--
Paul
Tim Jackson
[Arnoud:]
> > I suspect that most photographs of paintings are creative works.
>
> There, I think you're wrong, or, at least, however creative they may be
> they're not protectable by copyright independent of the underlying work.
> Most photographs of paintings aim to be faithful reproductions of the
> paintings, and as such, are not independently copyrighted.
I think this is something that will vary from country to country,
depending on the law of the country concerned.
I assume that Mike is commenting primarily on US law. Presumably
also, the original poster is concerned about US law rather than any
other country (since he referred to renewal of the copyright, and the US
is the only country I can think of where that might be an issue).
--
Tim Jackson
ne...@winterbourne.freeserve.invalid
(Change '.invalid' to '.co.uk' to reply direct)
Absurd patents: visit http://www.patent.freeserve.co.uk
Isaac
<ne...@winterbourne.freeserve.invalid> wrote:
> Mike Brown wrote on Tue, 26 Aug 2003 15:55:19 -0400....
>
> [Arnoud:]
>> > I suspect that most photographs of paintings are creative works.
>>
I'm the one responsible for the statement quoted above.
Isaac
Tim Jackson
> >
> >
> >> > I suspect that most photographs of paintings are creative works.
> >>
>
> I'm the one responsible for the statement quoted above.
OK, sorry.
Arnoud Galactus Engelfriet
Paul Wolff <f...@parabola-ip.com> wrote:
>There's clearly a difference between US and UK 'rules' for bringing
>copyright into existence here. I think it is correct to say that in the
>UK, while (in order to attract copyright) the work needs to be in the
>category of artistic works, which necessarily includes photographs, the
>actual artistic quantum or merit is immaterial; if the author has
>expended original skill and labour in the creation of the [photograph],
>as by the lighting conditions and so forth (and making a good
>photographic copy of a painting is really not easy, taking account of
>colour balance, surface reflectivity and so on), copyright in the
>original photographic copy will result.
The Netherlands follows the same rule. If creative effort was
involved in taking the photograph, the work is protected by
copyright. This applies even if the resulting work is a faithful
reproduction of the original.
Law books describe pictures from security cameras and automatic photo
stalls as exceptional cases of photos that have no copyright.
Mike Brown
>>copyright into existence here. I think it is correct to say that in the
>>UK, while (in order to attract copyright) the work needs to be in the
>>category of artistic works, which necessarily includes photographs, the
>>actual artistic quantum or merit is immaterial; if the author has
>>expended original skill and labour in the creation of the [photograph],
>>as by the lighting conditions and so forth (and making a good
>>photographic copy of a painting is really not easy, taking account of
>>colour balance, surface reflectivity and so on), copyright in the
>>original photographic copy will result.
Strangely enough, though, the plaintiff in the US "Bridgeman v. Corel"
case that I quoted was in the UK, and raised the issue of UK copyright,
so the case also discussed UK law on the same subject. The court came to
the conclusion that the copies in question weren't protectable under
under UK law, either. Not knowing UK law, I can't comment on whether
they were right or wrong, but here's what they said:
---
United Kingdom Law
While the Court's conclusion as to the law governing copyrightability
renders the point moot, the Court is persuaded that plaintiff's
copyright claim would fail even if the governing law were that of the
United Kingdom.
Plaintiff's attack on the Court's previous conclusion that its color
transparencies are not original and therefore not copyrightable under
British law depends primarily on its claim that the Court failed to
apply Graves' Case , a nisi prius decision and the supposedly
controlling authority that plaintiff did not even cite in its opposition
to defendant's motion for summary judgment. Graves' Case in relevant
part involved an application to cancel entries on the no longer extant
Register of Proprietors of Copyright in Paintings, Drawings and
Photographs for three photographs of engravings. 43 In rejecting the
contention that the photographs were not copyrightable because they were
copies of the engravings, Justice Blackburn wrote:
"The distinction between an original painting and its copy is well
understood, but it is difficult to say what can be meant by an original
photograph. All photographs are copies of some object, such as a
painting or statue. And it seems to me that a photograph taken from a
picture is an original photograph, in so far that to copy it is an
infringement of the statute." 44
Plaintiff and the amicus therefore argue that plaintiff's photographs of
public domain paintings are copyrightable under British law. But they
overlook the antiquity of Graves' Case and the subsequent development of
the law of originality in the United Kingdom.
Laddie, a modern British copyright treatise the author of which now is
a distinguished British judge, discusses the issue at Bar in a helpful
manner:
"It is obvious that although a man may get a copyright by taking a
photograph of some well-known object like Westminster Abbey, he does not
get a monopoly in representing Westminster Abbey as such, any more than
an artist would who painted or drew that building. What, then, is the
scope of photographic copyright? As always with artistic works, this
depends on what makes his photograph original. Under the 1988 Act the
author is the person who made the original contribution and it will be
evident that this person need not be he who pressed the trigger, who
might be a mere assistant. Originality presupposes the exercise of
substantial independent skill, labour, judgment and so forth. For this
reason it is submitted that a person who makes a photograph merely by
placing a drawing or painting on the glass of a photocopying machine and
pressing the button gets no copyright at all; but he might get a
copyright if he employed skill and labour in assembling the thing to be
photocopied, as where he made a montage. It will be evident that in
photography there is room for originality in three respects. First,
there may be originality which does not depend on creation of the scene
or object to be photographed or anything remarkable about its capture,
and which resides in such specialties as angle of shot, light and shade,
exposure, effects achieved by means of filters, developing techniques
etc: in such manner does one photograph of Westminster Abbey differ from
another, at least potentially. Secondly, there may be creation of the
scene or subject to be photographed. We have already mentioned
photo-montage, but a more common instance would be arrangement or posing
of a group . . . Thirdly, a person may create a worthwhile photograph by
being at the right place at the right time. Here his merit consists of
capturing and recording a scene unlikely to recur, eg a battle between
an elephant and a tiger. . ." 45
Moreover, the authors go on to question the continued authority of
Graves' Case under just this analysis:
"It is submitted that Graves' Case (1869) LR 4 QB 715 (photograph of an
engraving), a case under the Fine Arts Copyright Act 1862, does not
decide the contrary, since there may have been special skill or labour
in setting up the equipment to get a good photograph, especially with
the rather primitive materials available in those days. Although the
judgments do not discuss this aspect it may have been self-evident to
any contemporary so as not to require any discussion. If this is wrong
it is submitted that Graves' Case is no longer good law and in that case
is to be explained as a decision made before the subject of originality
had been fully developed by the courts. " 46
This analysis is quite pertinent in this case. Most photographs are
"original" in one if not more of the three respects set out in the
treatise and therefore are copyrightable. Plaintiff's problem here is
that it seeks protection for the exception that proves the rule:
photographs of existing two-dimensional articles (in this case works of
art), each of which reproduces the article in the photographic medium as
precisely as technology permits. Its transparencies stand in the same
relation to the original works of art as a photocopy stands to a page of
typescript, a doodle, or a Michelangelo drawing. 47
Plaintiff nevertheless argues that the photocopier analogy is inapt
because taking a photograph requires greater skill than making a
photocopy and because these transparencies involved a change in medium.
But the argument is as unpersuasive under British as under U.S. law.
The allegedly greater skill required to make an exact photographic, as
opposed to Xerographic or comparable, copy is immaterial. As the Privy
Council wrote in Interlego AG v. Tyco Industries, Inc., 48 " [s]kill,
labor or judgment merely in the process of copying cannot confer
originality. . . ." 49 The point is exactly the same as the
unprotectibility under U.S. law of a "slavish copy."
Nor is the change in medium, standing alone , significant. The
treatise relied upon by plaintiff for the contrary proposition does not
support it. It sates that "a change of medium will often entitle a
reproduction of an existing artistic work to independent protection." 50
And it goes on to explain:
"Again, an engraver is almost invariably a copyist, but his work may
still be original in the sense that he has employed skill and judgment
in its production. An engraver produces the resemblance he wishes by
means which are very different from those employed by the painter or
draughtsman from whom he copies; means which require a high degree of
skill and labour. The engraver produces his effect by the management of
light and shade, or, as the term of his art expresses it, the
chiaroscuro . The required degree of light and shade are produced by
different lines and dots; the engraver must decide on the choice of the
different lines or dots for himself, and on his choice depends the
success of his print." 51
Thus, the authors implicitly recognize that a change of medium alone is
not sufficient to render the product original and copyrightable. Rather,
a copy in a new medium is copyrightable only where, as often but not
always is the case, the copier makes some identifiable original
contribution. In the words of the Privy Council in Interlogo AG , "
[t]here must . . . be some element of material alteration or
embellishment which suffices to make the totality of the work an
original work." 52 Indeed, plaintiff's expert effectively concedes the
same point, noting that copyright "may" subsist in a photograph of a
work of art because "change of medium is likely to amount to a material
alteration from the original work, unless the change of medium is so
insignificant as not to confer originality . . ." 53
Here, as the Court noted in its earlier opinion, " [i]t is uncontested
that Bridgeman's images are substantially exact reproductions of public
domain works, albeit in a different medium." 54 There has been no
suggestion that they vary significantly from the underlying works. In
consequence, the change of medium is immaterial.
Bridgeman Art Library Ltd. v. Corel Corp. (DC SNY) 50 USPQ2d 1110
(2/18/1999)
---
Paul Wolff
<br...@bpmlegal.com> writes
>
> Laddie, a modern British copyright treatise the author of which now is
>a distinguished British judge, discusses the issue at Bar in a helpful
>manner:
>
did make a brave attempt to overrule the European Court of Justice in a
recent trademark case.
Back to basics, I have always thought that there was (UK) copyright in
photographs of works of art, which among other effects protected picture
postcards of the kind sold widely in museum shops.
--
Paul
Tim Jackson
> Back to basics, I have always thought that there was (UK) copyright in
> photographs of works of art, which among other effects protected picture
> postcards of the kind sold widely in museum shops.
So have I. And indeed, I'm sure I've seen copyright notices on such
postcards, suggesting that their photographers and publishers hope and
believe that we are right.
I suspect that the US court quoted by Mike may have taken a rather
restrictive view of UK law, when it equated such reproductions with mere
photocopies in which there is no copyright.
The cited passage from Laddie points out that copyright requires
originality, and that originality depends on the exercise of independent
skill, labour, judgment and so forth. It says that no such originality
occurs when placing a drawing or painting on the glass of a photocopying
machine and pressing the button. But I'm not at all sure that Laddie
would reach the same conclusion about a photograph that probably took
several hours of artistic skill and judgment to set up and get right.
The US court bolsters its view of UK law by citing Interlego v. Tyco.
But that wasn't about a photographer exercising skill and judgment to
produce the photograph he wanted. If I remember aright, it was about
Lego bricks (children's toy building blocks), of which the defendants had
made copies that were so exact that they would interfit with the genuine
article.
Mike Brown
>>photographs of works of art, which among other effects protected picture
>>postcards of the kind sold widely in museum shops.
> So have I. And indeed, I'm sure I've seen copyright notices on such
> postcards, suggesting that their photographers and publishers hope and
> believe that we are right.
Of course, they're hardly unbiased. I've seen numerous cases over here
where various archives attempted to claim copyright in illustrations
from books published in the 19th and early 20th century, which are
clearly in the public domain and not under copyright protection here.
> I suspect that the US court quoted by Mike may have taken a rather
> restrictive view of UK law, when it equated such reproductions with mere
> photocopies in which there is no copyright.
And, of course, the Southern District of New York has no jurisdiction in
Great Britain, and will never be overruled by the House of Lords, so
it's easy for them to express an opinion on the subject which they know
makes no difference. Sort of like the USENET, in a way.
> The cited passage from Laddie points out that copyright requires
> originality, and that originality depends on the exercise of independent
> skill, labour, judgment and so forth. It says that no such originality
> occurs when placing a drawing or painting on the glass of a photocopying
> machine and pressing the button. But I'm not at all sure that Laddie
> would reach the same conclusion about a photograph that probably took
> several hours of artistic skill and judgment to set up and get right.
But when you're done, if you do it right, the result is
indistinguishable from the public domain original, and that's what the
Southern District was having a problem with. Do you look at process, or
results? Should copyright be a reward for the work it took to produce
the work, when the resulting work is not a bit different from something
in the public domain? Or is the purpose of copyright to protect
originality? Under US law, the latter is true, and the SDNY clearly
thought the UK law was the same.
I've got a problem understanding the "hours of skill and judgment"
argument. Where do you draw the line?
For example:
You want a copy of Gainsborough's "Blue Boy". There's no artistic choice
or abstraction involved, you just want a copy of the whole thing just as
it hangs on the wall in the Huntington Gallery.
You take a photograph with your grandfather's view camera. It takes
hours to set the thing up, put the sheet film in, focus, pour flash
powder in the trays, set exposure, etc. The result is a perfect copy of
the painting. Then, you take a new camera which is infinitely automated,
point the camera at the picture, pop up the flash and shoot - the focus,
lighting and exposure are right from the start, and you get a perfect
copy of the painting. Zero time and effort, just like a photocopy machine.
You put the two Blue Boys next to each other, and you can't tell them
apart. If one is copyrightable, and the other not, how can you tell
which one is copyrightable (presumably the one you shot with
Grandfather's Graflex) from the one which isn't (the one you shot with
your Nikon F100000)?
How would any innocent third part tell them apart so he could exercise
his right to copy the second, but avoid infringing the copyright in the
first?
It seems to me that bringing the amount of effort it takes to copy a
public domain original into the equation weakens the whole concept of
"public domain" to the point of nonexistence.
Again, I know little or nothing of UK copyright law, and it may well be
true that one is copyrighted, the other not. I'd be interested in
knowing if that is the case.
Isaac
Under US law, a photography was an exact, or nearly exact copy of a
painting, it would IMO not be copyrightable. The argument about
the skill required to make the copy exact sounds an awful lot like the
"sweat of the brow" argument that's been rejected as providing a
basis for protection by the Supreme Court.
But it seems to me it would be very easy to take a copyrightable
photograph if it was important to maintain the copyright in a image
on postcard or in a book.
Isaac
Tim Jackson
[Tim Jackson, re UK copyright in photos of works of art:]
> > I'm sure I've seen copyright notices on such
> > postcards, suggesting that their photographers and publishers hope and
> > believe that we are right.
>
> Of course, they're hardly unbiased.
Yes, I agree that's true.
[snip]
>
> I've got a problem understanding the "hours of skill and judgment"
> argument. Where do you draw the line?
I've had a look at another book on UK copyright law ("Copyright and
Designs Law" by Merkin and Black, section 4.22.1).
They comment: "There is a surprising dearth of English authority on the
question of when a photograph satisfies the threshold test for
copyright."
Merkin and Black then cite Antiquesportfolio.com v. Fitch, [2001] FSR
345. I've not read this decision, so I'm just going by their comments on
it.
The judge (Neuberger J., one of Laddie's brother judges in the Patents
Court) accepted that not every photograph could be said to be original.
(For example, he wouldn't have found originality in a case of purely
slavish copying, such as photocopying.) However, he said that the degree
of skill and effort which was necessary to produce a finding of
originality was pitched at a low level.
Then there is a quote from the same passage in Laddie's book as given in
your previous post. It seems that in Neuberger's opinion the originality
requirement isn't quite as high as Laddie suggested, provided that the
author can demonstrate that some exercise of skill and judgment had been
exercised (angle, film speed, lighting etc.). The subject matter of the
photo would then be immaterial.
However, this opinion seems to have been obiter, and I'm not sure how far
it gets us with photos of paintings. The photos in this case were of
three-dimensional objects (antiques in an encyclopedia) so it was quite
easy for Neuberger to find that there was sufficient skill in selecting
camera angles, lighting etc.
Interestingly, Neuberger also took into account things such as focus, the
author's intention of exhibiting particular qualities of the subject
matter (colour, size etc.) and the selection of the article itself.
Perhaps some of these factors would also be relevant to photographs of
paintings?
Merkin and Black comment that, although it was unnecessary for Neuberger
to decide whether a photograph of a two-dimensional item (such as a
photograph or painting) could of itself be a copyright work, this might
be the case provided some degree of skill and care could be demonstrated.
Who knows?
Paul Wolff
<ne...@winterbourne.freeserve.invalid> writes
>Mike Brown wrote on Thu, 28 Aug 2003 16:12:46 -0400....
>
>>
>> argument. Where do you draw the line?
My favourite response: it's too early to tell.
There's another old saw in English copyright law: what's worth copying
is worth protecting. But that's not really believed in these days.
>
>I've had a look at another book on UK copyright law ("Copyright and
>Designs Law" by Merkin and Black, section 4.22.1).
Following Mike Brown's very interesting quotes earlier, I pulled down
Laddie & co-authors' book from the shelves when in the office the next
day and did some reading. I thought other passages elsewhere in the
book were more equivocal. I put it on one side to take home and study
further before posting the definitive answer here. But events happened,
as they will in an attorney's office, and rather absent-mindedly I later
noticed a book lying untidily among my papers and neatly re-shelved it.
>
>They comment: "There is a surprising dearth of English authority on the
>question of when a photograph satisfies the threshold test for
>copyright."
It does indeed seem that our current crop of judges are (is?) prepared
to reconsider the matter more critically.
--
Paul
Mike Brown
> exercised (angle, film speed, lighting etc.). The subject matter of the
> photo would then be immaterial.
>
> However, this opinion seems to have been obiter, and I'm not sure how far
> it gets us with photos of paintings. The photos in this case were of
> three-dimensional objects (antiques in an encyclopedia) so it was quite
> easy for Neuberger to find that there was sufficient skill in selecting
> camera angles, lighting etc.
As a photographer whose father is a sculptor, I can vouch for the fact
that there is a considerable amount of skill and judgment, and artistic
skill as well, in properly photographing a sculpture. The (US) courts
appear to be consistent in holding such photographs protectable by
copyright. Apparently the UK courts are the same.
I don't think the same applies to a painting, in the vast majority (if
not all) cases. The (US, admittedly) cases I've seen have all involved
attempts to reproduce the painting as exactly as technology permits.
That's where the market is, after all, so that's where the cases are
going to show up. I doubt the issue of copyright in a highly abstracted,
cropped, distorted, strangely lit and/or colored copy of an old master
would ever come up.
Jasper Groot Koerkamp
news:bicemv$j32$1...@toad.stack.nl...
> In article <GWc2b.3182$gj1.54...@twister1.starband.net>,
> Roger Schlafly <rog...@mindspring.com> wrote:
> >Some technical skill in the
> >operation of a camera may be needed, but the goal is simply to
> >copy the original, not create a new work of art.
>
> I don't know whether that is the case for the OP, but most photos
> of old paintings involve a lot of effort to get everything right
> and to capture the painting well. And that creative effort is
> what makes it more than "simply copying the original".
I'd say that the only intention of many photographers is to copy the
original, especially for e.g. a museum catalogue.
Jasper
Arnoud Galactus Engelfriet
Jasper Groot Koerkamp <koer...@spam.noway.jose.ieee.org> wrote:
>"Arnoud "Galactus" Engelfriet" <gala...@stack.nl> wrote in message
>news:bicemv$j32$1...@toad.stack.nl...
>> of old paintings involve a lot of effort to get everything right
>> and to capture the painting well. And that creative effort is
>> what makes it more than "simply copying the original".
>
>I'd say that the only intention of many photographers is to copy the
>original, especially for e.g. a museum catalogue.
Intent is generally irrelevant when it comes to copyright. Keep
in mind the general motivation is to protect the starving
composer and painter (with three wailing children upstairs)
against wholesale copying and ripoffs. So, anyone creating any
work must be a starving composer or painter and therefore
deserves eternal protection.
Tim Jackson
> As a photographer whose father is a sculptor, I can vouch for the fact
> that there is a considerable amount of skill and judgment, and artistic
> skill as well, in properly photographing a sculpture. The (US) courts
> appear to be consistent in holding such photographs protectable by
> copyright. Apparently the UK courts are the same.
Indeed so.
> I don't think the same applies to a painting, in the vast majority (if
> not all) cases. The (US, admittedly) cases I've seen have all involved
> attempts to reproduce the painting as exactly as technology permits.
> That's where the market is, after all, so that's where the cases are
> going to show up. I doubt the issue of copyright in a highly abstracted,
> cropped, distorted, strangely lit and/or colored copy of an old master
> would ever come up.
If such a case did come up, I think we'd agree there could be copyright.
The question is whether there would be any (UK) copyright if the photo
was a more realistic copy of the old master.
It appears that this point is as yet undecided in this country.
Certainly, Neuberger J. wouldn't have allowed any copyright if the
copying was purely slavish, such as pressing the button on a photocopier.
However, it appears he wouldn't have set the standard for originality
quite as rigidly as suggested in Laddie's book (and even that didn't
require much). I suspect that as long as there is some quantum of
originality, no matter how small, the degree of originality wouldn't be
important.
It seems to me that the issue would be whether a carefully set up studio
shot of an old master is more than just slavish copying. I don't know
the answer to that. But note the passage from Merkin and Black that I
cited earlier, speculating that copyright might be upheld in such
circumstances.