maybe this one will be an easier and clearer answer:
flickr has a lot of scans and pictures of antique tintypes.
in some cases, they are “all rights reserved” and disallow downloads. a lot of flickr photographers are adamant about not sharing their photos. but how can they lay claim to copyrights to a pic of a pic that is public domain by virtue of expiration of initial copyright…?
if i find a box of tintypes at an estate sale, buy them–do i now have copyrights to the tintype image itself? if it is scanned into a computer, do i have copyrights of the scan?
never mind about it being an easy answer. it’s already mind-bendingly convoluted.
these people who claim they own the rights to their image of an antique image–
by that logic, couldn’t i take a picture of my computer screen with a photo on it and claim i now have copyrights to that image? what about taking a photo of a sculpture and claiming copyright to the photo when the sculpture itself is copyrighted to the artist…?
I believe your photo has to be more than just a simple copy of the original - it has to add some sort of creative original spin to it. If you find a box of old stuff, the original creator retains the copyright unless it’s fallen into public domain. And again you can’t claim copyright to simple scans of them. You’d have to alter them or portray them in some significantly new way.
OTOH you do retain copyright to your scans in the sense that others can’t duplicate them. But you can’t prevent others from taking scans of the same thing on their own. And you don’t suddenly gain copyright to the actual original work.
For the most part, people “claiming copyright” to uncopyrightable things on flickr are merely not bothering to tweak their default settings for the things to which they shouldn’t apply.
i would think the copyrights on most old tintypes of non-famous people have long since died. the library of congress archive is all (or mostly) public domain (is it not?). some famous images or images of famous people might have transferred or purchased rights that are still active. i’m more interested in your run-of-the-mill tintypes and antique photos, tho.
for that matter, Duke has a massive online archive of antique ephemera and trade cards, from which i frequently borrow ideas (i said before i have done a few murals creating variations of antique trade cards from defunct companies). they have a disclaimer saying you must contact the duke library to obtain permission for use–but they are all just scans of either dead companies’ very old advertising OR still living companies who i am sure maintain their own rights (i would presume Hersey’s still owns rights to their old ads, as does CocaCola and Pepsi and so on and so forth).
as for the photo-of-a-sculpture, guess what? convoluted answers abound. according to PhotoAttorney online, photos of other artwork do not constitute fair use. according to all the photography forums, photographs of ANYTHING belong to the photographer. there is at least one case precedent on both sides, so how anyone makes sense of it is beyond me.
no offense, but photographers are a really uptight and contentious bunch. i say that as a photographer and an artist. it just seems weird…i paint things on buildings that will be photographed and rephotgraphed and that’s the point: i want to share my thing (sidenote: i often do not sign my work, either. which is more stupid than anything else). the point is to share things, like a gift to the world. photographers, on the other hand, watermark across the middle of stuff and ruin it, because they are too uptight. “DON’T EVEN LOOK AT IT!” they might as well scream.
is that bullshit? legally, do they own the rights to the images of the images, meaning i can’t download a photo and use it…? but if i had access to the original, i could photograph IT and it would then be mine? could i take a photo-of their image on my screen and use THAT? does time-space fold in on itself because of copyright law??
for good measure, i contacted the Daguerrian Society questioning their copyright legalese. i am somewhat anticipating them to claim they are the “original publishers” of some of the more mundane images. but does posting on the net constitute publication…? and if so, how would one be able to prove a tintype or old photo found in a box at a garage sale had never been published before…?
The short of it: copyright law is intended to protect original creative works. “Slavish copying”, the term they use in the Bridgeman case, does not contribute anything original and is thus not copyrightable. In other words, the more exact your reproduction is, the less protectible it is.
Theoretically, if someone photographs an image, they are contributing some originality to the resulting photo, in that they made decisions about lighting, angle, and so forth. However, in creating this image, you have created a “derivative work”, which means that you can in theory sue anyone who copies your contributions, but not anyone who copies the original, uncopyrighted work.
Una’s post in this very old thread is a good restatement of the issues you’re asking about.