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Using derivatives of public domain work

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oporornis

Junior Member
What is the name of your state (only U.S. law)? Florida

Can someone please answer this question? I have consulted local attorneys. They laugh at me. I think I must not be making my self clear, but here is a try.

Many companies post copies of public domain art on the Internet. I am talking about true public domain works, old art, way past 1923. For example, a Rembrandt, a Monet, Stuart's portrait of George Washington, 1800s photos...pieces like that.

They then try to sell those copies, sometimes at very high prices. More power to them if they can get the money, but my contention is this. Tell me if I am wrong. As exact copies of the original work, these derivatives confer no copyright whatsoever to the agent that posts them on the Internet. By posting them, the organization (Corbis, or Getty, or Joe Blow) is performing a magnanamous gesture to the public, whether it intends to or not. Should I not have perfect right to copy this image to use any way I wish? The original is, after all, public domain, and the copy has not been significantly or artistically altered. I shouldn't have to buy a copy of an 1870s photo, for example, from Corbis and pay them several hundred dollars in licensing. That photo is public. Corbis chose to put it on their website...oh well.

Other than Bridgeman Art Library v. Corel Corp there seems to be no law
dealing with this, and Bridgeman is British law. I desperately would like to hear members of this forum's opinions.
 
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oporornis

Junior Member
I'm very sorry! I thought that by framing the issue clearly, I would generate some valid opinions. Having perused this forum I notice that snide comments are often the response to people's earnest efforts to solve problems. This time seems to be no exception... You probably could have stayed at a 5 star resort and it still wouldn't have produced any manners.
 

tranquility

Senior Member
As exact copies of the original work, these derivatives confer no copyright whatsoever to the agent that posts them on the Internet.
They are not exact copies. They are different. Have you seen a painting?

It would be like musicians. They perform an old piece. Others can perform the old piece if they'd like, but they can't use the music the musician performed.

Go to the Getty and take a picture of the painting. (If they let you.) Then, perform the work necessary to translate it to a .jpg of the size, shape and detail you like.
 

oporornis

Junior Member
Thank you, tranquility, for your response,

In my case, the images are exact reproductions. Are you saying that translating the photo to the .jpg you suggest is sufficiently changing the original to generate a copyright protection for the .jpg. Or do you suggest that maneuver as a way to generate a legally useable copy of a painting (if access were available)?

Bridgeman and subsequent opinions have all implied that someone attempting to faithfully reproduce any two dimensional work of art is not creating a uniquely copyrightable product. Therefore if Getty owned a Matthew Brady civil war photo, and digitalized it to post online, they have not done enough to create a copyrightable derivative. Would you agree to that concept?

Music, of course is totally different, as each performance is unique, and the sounds don't exist until the time they are played.
 

tranquility

Senior Member
Pictures of photographs? The case was pretty clear on the criteria and argument of the reconsidered Bridgeman case (Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191):
United States Law

The Court's prior opinion indicated that plaintiff's exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original.[27] In view of the Court's conclusion here that U.S. law governs on this issue, it is appropriate to give a somewhat fuller statement of the Court's reasoning.

In Burrow-Giles Lithographic Co v. Sarony,[28] the Supreme Court held that photographs are "writings" within the meaning of the Copyright Clause and that the particular portrait at issue in that case was sufficiently original — by virtue of its pose, arrangement of accessories in the photograph, and lighting and the expression the photographer evoked — to be subject to copyright. The Court, however, declined to decide whether "the ordinary production of a photograph" invariably satisfies the originality requirement. While Judge Learned Hand later suggested 196*196 that the 1909 Copyright Act protected photographs independent of their originality,[29] his view ultimately was rejected by the Supreme Court.[30] Nevertheless, there is broad scope for copyright in photographs because "a very modest expression of personality will constitute sufficient originality."[31]

As the Nimmers have written, there "appear to be at least two situations in which a photograph should be denied copyright for lack of originality," one of which is directly relevant here: "where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying."[32] The authors thus conclude that a slavish photographic copy of a painting would lack originality, although they suggest the possibility that protection in such a case might be claimed as a "reproduction of a work of art."[33] But they immediately go on to point out that this suggestion is at odds with the Second Circuit's in banc decision in L. Batlin & Son, Inc. v. Snyder.[34]

Batlin involved the defendants' claim to copyright in a plastic reproduction, with minor variations, of a mechanical cast-iron coin bank that had been sold in the United States for many years and that had passed into the public domain. The Court of Appeals affirmed a district court order compelling the defendants to cancel a recordation of copyright in the plastic reproduction on the ground that the reproduction was not "original" within the meaning of the 1909 Copyright Act, holding that the requirement of originality applies to reproductions of works of art.[35] Only "a distinguishable variation" — something beyond technical skill — will render the reproduction original.[36] In consequence:

"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. Even in Mazer v. Stein, [347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954)], which held that the statutory terms `works of art' and `reproduction of works of art' ... permit copyright of quite ordinary mass-produced items, the Court expressly held that the objects to be copyrightable, `must be original, that is, the author's tangible expression of his ideas.' 347 U.S. at 214, 74 S.Ct. at 468, 98 L.Ed. at 640. No such originality, no such expression, no such ideas here appear."[37]

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."[38]

There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. "Elements of originality ... may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved."[39] 197*197 But "slavish copying," although doubtless requiring technical skill and effort, does not qualify.[40] As the Supreme Court indicated in Feist, "sweat of the brow" alone is not the "creative spark" which is the sine qua non of originality.[41] It therefore is not entirely surprising that an attorney for the Museum of Modern Art, an entity with interests comparable to plaintiff's and its clients, not long ago presented a paper acknowledging that a photograph of a two-dimensional public domain work of art "might not have enough originality to be eligible for its own copyright."[42]

In this case, plaintiff by its own admission has labored to create "slavish copies" of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality — indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.
Go to the case and then the footnotes if you need more.

Info edit:
An important footnote would be:
[38] Past Pluto Productions v. Dana, 627 F.Supp. 1435, 1441 (S.D.N.Y.1986) (citing L. Batlin & Son, Inc., 536 F.2d at 491). Accord, Durham Ind., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir.1980).
Maybe you can provide some actual facts? Or, is this homework?
 
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oporornis

Junior Member
Thank you again for this very helpful material. No this is definitely not homework. These images are destined for a documentary to be aired on TV and the Internet. Since you asked for specifics, here is one of the images in question.

Collections Online : mnhs.org In order to see this, erase the Collections Online : mnhs.org at the end. The forum site is adding this to my post for some reason.

The photo is owned by the Minnesota Historical Sciety. You can buy it for a nominal fee, but there is also a large licencing fee for TV use. You can get it from Corbis for even more money. It was taken in 1880 by an unknown photographer. As you can see, it is definitely a "slavish copy" of the original.

My contention is that I should be able to use this without paying licensing fees, because whoever posted it on the Internet does not own any copyright to the original, even though they own the actual photo.
 
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tranquility

Senior Member
I'd hire an attorney now. Note that it is not just a picture of a picture, but a picture of the display of a picture. (mountings too)
 

oporornis

Junior Member
Thanks again. I'm having trouble finding an attorney. Maybe some of the material on this forum will help me find him/her.
 

Zigner

Senior Member, Non-Attorney
What you are being told is that you are NOT steal...err...borrow...err...using a copy of the artwork. You are even further off than that. You would be using a photo of the artwork that somebody else took and owns the copyright to.
 

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