View Full Version : Photographs of flat art: copyright issues
In the past, I have refrained from photographing flat art because I though there is no creativity involved in doing so. You just use the camera as a copy machine. However, returning from a trip in Europe, I thought that in a gallery of travel photos of, let say Ghent in Belgium, it would be nice to have some pictures of the "Adoration of the mystic lamb" (this is an example, many people stop in that town just to see that painting). Then I remembered that some of the images of Misrach's desert cantos were just of paintings, and of course they are reproduced in books and sold as fine art prints at high prices. There is also images of Struth that are just of a couple of paintings on a wall. This made me curious about the copyright issues. If I walk in a museum, and take a photograph of a painting, who owns the copyright to the photograph ? Do I have the right to sell the photograph without the museum's permission ? If so, does anybody has the right to copy the photograph ?
In the US, the courts have determined that a straightforward copy pohotograph of flat artwork (i.e. a painting, drawing etc) where the original artwork itslef is old enough to be in the public domain does not meet the bare bones minimum of creativity to be itself copyright protected. (in the same way a phone book isn't "creative" and isn't copyright protected).
Photographss of 3d artwork like sculptures, masks etc, do generally meet that test (it is presumed the photogorpaher has to to make more "creative" decisions about position and lighting etc) and the photograph itself is copyright protected even if the original work is old enough to be public domain. (bear in mind the "creativity" bar is very low - personal letters and emails, for example, are generally copyright protected for example).
In the case of Misrach and Struth I imagine both their reputation and also artistic and conceptual intent would come into play (for example, misrach's chosing just a portion of a painting is a "creative" decision, as is Struth making decisions about including more than one painting or peopel come into play).
I'll dig up the case if I can - it is the landmark case for this issue (though it was a rather bizarre case, where a UK image library went after a Canadian company - Corel - in the US - it was tried in New York under UK copyright law, then the judge revisited it under US copyright law and came to the same decision. The US Museums association or whatever hated it, because their memebers have been making a tidy sum off slides, posters, reprints etc of old masters and such and they wanted to keep control of that...)
Okay - here's a slightly repetitive post from a discussion I recently had on the issue - the links at the bottom give some good info on the case:
"It was discussed in some depth on a copyright course I did with some of the major IT lawyers giving input.
The major museums have been making a tidy income from controlling the rights to works of art they own - works which themselves though are public domain - they often claimed to have copyright in the reproductions and thus could control them and make (lots of) money off them.
Turned out they were wrong...
It was a somewhat odd case legally - as the US Court relied on some issues of British intellectual property law which may not actually apply in the UK... (it was very convoluted - it was a British art library suing a Canadian company in an NY Court - first it was tried under British Copyright law, then after the judgement, the court was persuaded to revisit it under US Copyright Law but came to the same conclusion))
I don't think it was or will be appealed - because it was widely accepted it was correctly decided. The lawyers on the course felt that the reason the major museums and their "trade" organisation didn't support pursuing the appeal process was that they had already lost badly (indeed, they would have preferred the case not have been brought at all and for a certain ambiguity to remain) and it was felt if they pushed it further, there would be even stronger clarifications made that would be even less in their favour- it was felt it was best just to cut their losses.
a bit more info
from the American Museums Association brief:
"This is one of the most relevant copyright decisions for museums in years. A Federal district court in New York in November held that photographic reproductions of two-dimensional works, which themselves are in the public domain, do not have the requisite amount of originality to be protected by copyright.
While this ruling was under British copyright law, the court noted it would have come to the same conclusion under U.S. law. At Bridgeman's request, this same district court revisited its decision and issued a revised opinion in February reaching the same conclusion, but doing so under U.S. law. Thus, this new ruling is more damaging to the status quo than the original....
Although Bridgeman retained an alternative and reputable counsel for an appeal, we were recently informed that it will not go forward, citing a lack of financial resources. This is good news. We already had decided (with validating advice from a number of museum general counsels) to stay away from any appeal, and were prepared to encourage Bridgeman not to appeal, for the following reasons:
Just about every museum attorney looking at the case objectively thinks it came out the correct way according to U.S. copyright law * that's why no museum had ever brought such a suit. The U.S. Copyright Office informally agrees. Thus, no one saw any real chance for reversal on appeal. In addition, an affirmation by the Second Circuit, arguably the most influential court on copyright issues, would be even more damaging...." more at:
QTL, I have only one book by Struth, and have only seen a couple of articles, but I haven't seen a shot by him which is 'just of a couple of paintings on a wall'. Where should I look to find these, or is there a hint of contempt in this (possibly inadequate) description? Anyway, got to get back to Muench's well-known shots 'Just a bit of plant on the ground' and 'Just of a couple of Rocks'.
It might also be useful to add that you're discussing (particularly, but not exclusively) a 15th century painting.
Although I'm not a lawyer, I do deal with copyright issues a lot at the American Society of Journalists and Authors. If the original work was under copyright, then a photo would be considered a derivative work and you would not have the right, without permission, to publish that. However, if you are taking the photos for your own use, I suspect that it would be covered under the doctrine of fair use, just as you can photocopy an article for your own use. Otherwise, you'd probably not be allowed to take photos of sculpture or even architecture.
I think the issue relates to the copyright which exists in photographs of artwork which has become public domain (i.e. it's old)
Take a photograph of a Degas sculpture and although the sculpture itself is public domain, your photograph of it is copyright protected (and as long as you were in a position to take the photograph legally - e.g. you hadn't agreed to any conditions relating to photography on buying a ticket to the museum, then you generally own the copyright to that photographic image).
But, take a photograph of a Rembrandt, and not only is the Rembrandt in the public domain, but any copy photograph you take is not copyright protected either (that is, you can still use it, but so can anyone else).
The flip side of this is, you can probably buy one of those slides museums sell of their old paintings (flat artwork) and just scan or print that and use it in your work. Because it isn't protected by copyright.
The only way around that is for institutions to require you to sign a detailed usage agreement forbidding any such use - but it could only be enforced under contract law, not the more stringent copyright law, which would normally apply by default as it were.
>> Take a photograph of a Degas sculpture and although the sculpture itself is public domain, your photograph of it is copyright protected (and as long as you were in a position to take the photograph legally - e.g. you hadn't agreed to any conditions relating to photography on buying a ticket to the museum, then you generally own the copyright to that photographic image). <<
From my understanding (and I end up reading a lot about copyright), it's not so certain. As someone else mentioned, there has to be a certain amount of creativity. Trying to pin down that amount is difficult. There have been cases where an advertising product shot taken against a white background was held to be insufficiently creative to protect, which allowed the product vendor to have a second photographer recreate the basic shot. It would depend, I suspect, on how you photographed the Degas piece. Likely it would enjoy copyright, but it never hurts to remember that the courts can be capricious.
Now, going back to the question of taking photos of paintings on a museum wall and whether the photographer could sell them, I think that might be problematic. The issue is that the shot is being taken also of museum property (the walls, displays, etc.). If you are going to sell a photo of private property or settings, you will generally need a release to do so. And would there be a design copyright in the arrangement of the images and the lighting of them? Could be.
Think I'll stick with landscapes and street photography for now...
"THE LAW (IN PLAIN ENGLISH), FOR ART AND CRAFT GALLERIES"
by Leonard D. DuBoff 1993 Interweave Press. Loveland, Colorado
Page 60... Public Domain.. ..".Once the copyright has expired, the work enters public domain, where it can be used by anyone in any manner. A person can, however, obtain copyright on a work (photograph), derived from a work in the public domain IF a DISTINGUISHABLE VARIATION is created.
The above is the jist of that section. As the book was printed in 1993, some things may have changed. If the work is important, then it would be best to seek counsel with experience in this area.
This book also covers many subjects about the law as it pertains to artist, galleries, catalog sales of art work, trademarks, servicemarks ect. along with many useful blank forms, (consignment agreements, bills of sale for artwork), and more. It covers a lot of details. Even alcohol serving at openings.
"From my understanding (and I end up reading a lot about copyright), it's not so certain. As someone else mentioned, there has to be a certain amount of creativity. Trying to pin down that amount is difficult. There have been cases where an advertising product shot taken against a white background was held to be insufficiently creative to protect, which allowed the product vendor to have a second photographer recreate the basic shot. It would depend, I suspect, on how you photographed the Degas piece. Likely it would enjoy copyright, but it never hurts to remember that the courts can be capricious. "
which was why most of the post was full of caveats and probablys....
Bear in mind a couple of things though - Bridgeman vs Corel has basically become the test case for defing the level of the "originality" bar required for copyright protection - and it defined it pretty low down (and without digging thought he case, I think? it was there that the judge made a comparision between "slavish" copies of flat artwork and photogorpahs of other, 3D, artwork, defining the bar as fallign between the two). And came up with: ''There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection.... But 'slavish copying', although doubtless requiring technical skill and effort, does not qualify.'' and ''There has been no independent creation, no distinguishable variation from pre-existing works, nothing recognizably the author's own contribution'' - as soon as you move away from a reproduction of flat artwork to, say, a statue, the photogorpaher starts to make original decisions about where to place the camera in realtion to the multitude of possible viewpoints, how to light it and where to let shadows fall and so on - at which point it begins to move from the Supreme Courts mere"sweat of the brow" to it's "spark of originality" (hpowever small) that allows for copyright potection.
"Now, going back to the question of taking photos of paintings on a museum wall and whether the photographer could sell them, I think that might be problematic. The issue is that the shot is being taken also of museum property (the walls, displays, etc.). If you are going to sell a photo of private property or settings, you will generally need a release to do so. And would there be a design copyright in the arrangement of the images and the lighting of them? Could be. "
Again, I was talking in the context of a direct copy no other surrounding context
Richard, it was a frontal shot of a group of paintings on a wall (no people in it unlike in his more famous series), but I saw those in a library and don't have that book with me. If I remember well, Gursky also has at least one photograph in his last retrospective that could be described like that. I think it was Turner's paintings. The "just" is not an attempt at passing any judgement, only a factual description of the contents of the photograph. There is also in Michael Smith's retrospective book one or two photographs of portions of maps, that elicit praise by the writer of the essay in the book.
From the discussion so far, it would seem that if you photograph a portion of the art without the frame, then you'd have achieved the two goals of (a) avoiding any museum's right problem (if the piece is old enough to be public domain), because only the piece is in the photo, not the frame or wall. (b) creating an "original", copyrighted photograph (because cropping would be a creative process). Did I get it right ?
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