Copyright

Hi - I would like to use a certain painting which is in the public domain.  It's featured on Wikigallery.   However, it says "Free for non commercial use" - so I'm not trying to sell the painting of course, but my article might help me to earn some money.  Does this mean I can't use this painting?    It's probably really obvious....

Thanks very much.

Kathleen

Catana: 04/09/2013 - 08:43 AM

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Even if the painting itself is in the public domain, the photograph of it may not be. It might be best to see if you can find another photo of the painting, using Google's graphics search.  My objection (which has no legal use, of course) to such limitations is that if different people take a photograph of the same painting, it's unlikely that there's going to be any difference between them.

Thank you for your reply Catana.  I see what you mean about photographs...it does seem to be very complicated to me.   I just want to sing the praises of the painting - not stick it on the side of a tea caddy or anything.   I will do what you suggest and have a search.   Thanks very much.

The best place I've found for paintings is on allposters if they have one.

Ragtimelil: 04/09/2013 - 09:06 AM

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The best place I've found for paintings is on allposters if they have one.

Yes it's great usually, but this particular work isn't on there.  I've just sent an email to the museum where it's on display and asked if I can use it and offering to link back to it.  Might work! 

In the USA photographs that are straight photos of a work of art in the public domain have no copyright on them, regardless of what a museum, gallery or the photographer may claim. In the UK there can be a copyright on a photograph.

The reasoning behind the American law is that a photograph that faithfully reproduces the work of art has no artistic value in itself and therefore is not copyrightable. On the other hand, if the photograph has been digitally manipulated to the extent that it is different from the original, then it may become new piece of art and can be copyrightable. The digital manipulation can be done by the photographer or anyone else who came along and picked up the photo. Remember, this is true only for photos of pieces of art that are in the public domain.

If the photo is of a sculpture, then the photo substantially changes the nature of the original piece of art and therefore is copyrightable. 

Hope I got this right and that I wrote it clearly.

Sheri_Oz: 04/09/2013 - 02:46 PM

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In the USA photographs that are straight photos of a work of art in the public domain have no copyright on them, regardless of what a museum, gallery or the photographer may claim. In the UK there can be a copyright on a photograph.

The reasoning behind the American law is that a photograph that faithfully reproduces the work of art has no artistic value in itself and therefore is not copyrightable. On the other hand, if the photograph has been digitally manipulated to the extent that it is different from the original, then it may become new piece of art and can be copyrightable. The digital manipulation can be done by the photographer or anyone else who came along and picked up the photo. Remember, this is true only for photos of pieces of art that are in the public domain.

If the photo is of a sculpture, then the photo substantially changes the nature of the original piece of art and therefore is copyrightable. 

Hope I got this right and that I wrote it clearly.

Hi Sheri - You explained this really clearly - thanks for taking the trouble.  It's a bit of a minefield isn't it!  And raises all sorts of questions concerning ownership.   The painting I want to use is kept in a museum here in the UK and they have the copyright, but the photo of the paijting which I want to use belongs to the BBC.  Be interesting to see if the museum replies to my request.  I did once ask the Tate Gallery if I could reproduce one of their paintings on an article and they said, "Yes", but it would have cost me about £500 or more....Of course you can create a link, but it doesn't have the same impact.

 Maybe I should just paint my own picture!   Thanks Sheri. Appreciate your help.

If it's really free to use for non-commercial applications, you may use it in any blog and on Wizzley. That is no commercial, it's editorial use. Even if you are earning money with your articles.

Simon: 04/09/2013 - 04:32 PM

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If it's really free to use for non-commercial applications, you may use it in any blog and on Wizzley. That is no commercial, it's editorial use. Even if you are earning money with your articles.

Simon, thanks for that.   That's great!  

This has been a really useful thread for me.  Many thanks!

Simon: 04/09/2013 - 04:32 PM

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If it's really free to use for non-commercial applications, you may use it in any blog and on Wizzley. That is no commercial, it's editorial use. Even if you are earning money with your articles.

Sorry but as a professional photographer I have to speak up.  That's wrong.  The confusion comes in where different people mean different things by "commercial usage."  There are two ways to look at it (and the courts do not always pick the same side).  1.  Commercial usage refers to reselling the photo in some way.  As a poster for example.  2.  Commercial usage is ANY usage that results in money being earned except for fair use.

Editorial usage has traditionally only applied to news stories in the U.S.  Fair use is very tricky with photography and the discussion of that would take so long it is best just to avoid trying that avenue.  But I will say that teachers printing out photos and handing them out to their class or republishing them on the internet on their own homepage is not fair use.

Hello Liza    Thanks for your input.. Really useful.  Happily, the museum that holds the painting I want to use have allowed me to use it this once without a fee and as long as I link it back to them.   I am really pleased because I find this whole copyright thing very confusing!

Thanks to everyone who answered this query.   :)

Sorry I meant that to be 'LizM' not Liza! 

Hey, I've been called worse...much, MUCH worse!   lol    

Glad you found a photo to use.

Catana: 04/11/2013 - 03:37 PM

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@LizM So if I want to use a public domain work for a book cover and a museum claims copyright, where would I stand legally? My books are for sale on the net, and if I use a public domain work, I'll credit the artist. I'm not sure why taking a photo of a painting entitles a museum to claim no one can use it except for non-commercial purposes.

Technically, it really shouldn't BUT the courts are bad about flip flopping and being very unpredictable about rulings on copyright issues.  Some courts say that yes it is just a record of another work BUT the photographer took the time and expense to make the record so you can't take his work for free.  Others see it as of no original merit so the rights for the original work prevail.

Eventually you can probably get a judge to agree with you BUT you'd have the upfront costs when the museum (with much bigger pockets than you) sues you AND if the site makes a point of saying not to use the works except for non-commercial purposes you lose a lot of credibility with a judge because (right or wrong) you deliberately ignored the notice.

I think LizM's statement is true depending on the country or state in which the suit is opened. For example, the UK regards photos of public domain paintings to be copyrightable while the USA does not.  What actually happens in court, however, may be totally random and not totally logical and no one would really want to get there.

I have just been involved in such a hassle with a Yorkshire woman that I finally deleted the picture. It was a photo of a 19th century painting, in fact a closeup of part of the painting. She claims it is HER photo and that I took it from her site. I did not! But I took it down anyway and replaced it with another photo of the same painting from an American website, and now she claims that site stole it, too!

She does have a similar photo on her Facebook page, but with writing all over it, so obviously the one I used isn't from there.

She was very obnoxious about it all. I finally said to her, look, I don't want this hassle, I am removing the picture. But I did not get it from your site, I used it in good faith, there was no attribution or copyright on it, and according to the law HERE it is perfectly legal to use (being a closeup photo of an public domain painting), since I didn't get it from your site and did not use your photo. I only have your word that it's yours anyway, and if you don't believe me, why should I believe you?

Is there another way to handle such a situation? BTW the artist isn't even known. It's an anonymous painting.

To follow up, her photo is here, her profile photo (note the writing all over it).

https://www.facebook.com/pages/Coloured-Thoroughbred-Breeders-Association/110599812340219?fref=ts

and the one I had used is here. It's shown twice on the right side, once in a frame (entire painting) and once in closeup.

http://www.scoopweb.com/California_Thoroughbred_Breeders_Association

Where DID you get it from? That's the question. You can't simply download it from another website without being clear on the license. 

If she took a picture of a "public domain painting", she controls the copyright on that photo, no?

I got it from the second link. There was no photographer's name, no attribution, no link to an additional site, nothing to indicate that the photo I used was her particular photo of this painting or that anyone held the copyright on it, since it was unmarked. The same painting is shown in black and white on several other sites, as well as in at least one book. I did not use any of those.

The point is, how do you know which photo is hers? If 10 people take a photo of a painting, they will all look alike. Unless someone puts a copyright mark on it, you don't know. The painting itself is by an unknown artist and done in the 1840s, therefore public domain. Presumably, if the photo is by an American, no copyright, but if the photo is by a Brit, there is. Without someone putting their name and location on it, there is no way to know which applies or who took the photo.

She doesn't own the copyright on the painting, only on her individual photo of it. The point is, I DID NOT take it from her site and I did not use her photo to the best of my knowledge. Heck, if you do a search for it, hers doesn't even show up!

If I went to Britain and took a photo of that painting, she could claim it was her photo, because it would look just like hers. I see this as a big problem.

It's actually quite simple: If you didn't take the picture, you cannot use it.

Unless you get it from ...

... a site with clearly marked public domain images (pixabay.com)

... a site with CC images, which usually require attributions (flickr.com)

... any other site with a written permission by the copyright holder

It doesn't matter that the painting is in the public domain - it's HER photo that's copyrighted.

Sure, most people don't observe these rules, but when you get caught ... well, there's nothing you can do except being grateful that you're not in Germany. They have lawyers specializing in that kind of stuff. You'd find a bill over $1.500 in your inbox.

How do I know whose photo it originally was? The one I used, I included a link back to the site where it came from. Her copy had writing on it, this copy did not. That suggested to me that they were two different images of the same public domain painting.

I was going by the Wikimedia policy, since I figured they had the legal advice that I didn't.

"To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers. WMF has made it clear that in the absence of even a strong legal complaint, we don't think it's a good idea to dignify such claims of copyright on public domain works. And, if we ever were seriously legally challenged, we would have a good internal debate about whether we'd fight such a case, and build publicity around it. This is neither a policy change (at least from WMF's point of view), nor is it a change that has implications for other Commons policies. —Erik Möller 01:34, 25 July 2008 (UTC)"

They explained it by quoting a court case.

"In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented.

"The rule therefore excludes from copyright protection photographs which are intended to be no more than a faithful reproduction of a two-dimensional work of art such as a painting."

The thing is, 100 photos by 100 different people of the same painting will look pretty much identical. And ANYONE can then say, "that's my photo" when it isn't. It's like a big mine field, and makes it hard to know what to do if you want to use an old picture.