Copyright on public domain pictures

Me pal & I are starting our new business; in order to spice up the product, we’ve been looking into adding classical artwork. Now, the artwork itself is frickin’ long out of copyright. AFAIK, Rembrandt von Rijn ain’t gonna sue. But, as it happens, the only pictures available to us are of course, taken by someone else, who can then claim cetain rights on the gif or jpg. Now, problematically, we don’t have a clue who took these pictures: they’re found all over the net. That would kill the idea.


 AFAIK, if we crop the pictures, export them to another file type and then pdf then, it's perfectly legal to use them; just as taking a picture of someone's painting makes it  derivative work, so does our method make ours a derivative work. In any event, they won't be able to determine where we got the pictures. Is this legal and can we sell it online or print?

IANAL, but I don’t think doing this would make it “perfectly legal,” though it might help you avoid detection. Copyright of a photograph of classical artwork would belong to the photographer, as there is the potential for creating new art through angles, perspective, etc. I would think it would be fairly easy and relatively inexpensive to obtain stock photos legally of these same objects.

The “angle” is none in any of these cases, though we toss any overexposed pictures. The problem is that our scanner isn’t very good.

IANAL either, but…

While the source artwork is in the public domain, the reproduction of it that you’re copying probably isn’t. And yes, the holder of the copyright of that reproduction has ways of finding out you copied his version.

Even if we alter the picture, it’s not allowed?

No. The actual item you’re altering is someone’s photo, which has copyright from the date it was taken, and such copyright is probably still in force. It doesn’t really matter that the subject is ancient.

OTOH, I believe that you’re perfectly free to take your own photo of the artwork and modify it as you see fit. (Which is why the museums tend to prohibit professional photography, go figure.)

Drat, well then, what do I do? I can’t go take photos of musum peices across the entire US and Europe? Thus far I’ve got stuff by:

William Beard
Burne Jones
Bungo Sakuma

and that doesn’t even cover the ones who last names don’t start with “B”!

I don’t even know who I could email to request the use of the photo. I expect they might be willing to let me; maybe not, I don’t know.

Paying people to illustrate takes money, which I am loath to spend, especially when I don’t know anyone to draw for us.

As an artist, I’m very sensitive to the issue of people ripping off other people’s work. What you’re saying is that you’ve got an idea that may be illegal and probably is unethical, and you’re looking to get around all that.

Do your own art, or pay someone else for the right to use theirs. If you won’t or can’t, then come up with a better idea that doesn’t exploit anyone.

Take aaslatten’s suggestion and use stock photos.

  1. They’re dead. It’s not like I’m trying to steal copyright from Jimmy down the block.

  2. The Entire Purpose ™ of this thread is to find out if it will be legal and if so, how it can be legal. You obviouslky weren’t reading when I asked about that whole legality bit.

  3. No, I don’t consider taking some gif some fool scanned from a grainy photo he picked up in an art book wrong; whether it is legal or not is another question.

Anyway, I’ll check some government databases and see if they have some scans since any photos they have are public domain, being owned by the public. And the stock books.

I think you’d have to alter it enough for it to be fairly considered a “derivative work” (like making it part of an artistic collage) and not just a cropped copy.

What would be enough to make something a collage, and as such a new work of art? If for instance you took possibly copywrited images of several portraits, photoshopped them so they are all just heads of the same size, and then used them to form a croud scene using non discript bodies, would that be sufficient?

All of my “museum and art law” materials are in storage, but when I get home, I can look up the mini-paper that I wrote on this very subject and give you something of a skinny.

In brief, I can tell you this: when dealing with something out of copyright and a photograph thereof, the more accurate the photograph is, the less protectible it is. At least one court decided, as I recall, that the making of slavish copies, no matter how difficult, does not contribute originality and thus is not protected by copyright.

But don’t take that as gospel until I can get the actual paper, mmkay?

You are probably in the clear. In Bridgeman Art Library vs. Corel (1999), it was ruled that slavish reproductions of public domain 2-D artwork are not copyrightable.

And later

So your question is, because you can’t take the time and expense to get a rights-free reproduction of the work, you want to know if it’s legal to copy the work of someone who did get the rights?

I also endorse aaslatten’s suggestion on using stock photography.

I’ve posted at-length, numerous times on this, and on the impact of Bridgeman.

The truth is, you are almost certainly in the clear if you use a picture, scan, photo, or other reproduction of a 2-dimensional public domain work, provided no original content or derivative work is at play. A simple reproduction of a public domain work is still public domain, and Bridgeman has never been challenged. In addition, it is the “general feel” of many people who are actual lawyers who wrote articles on Bridgeman ex post facto that it was a proper ruling that would be upheld by the USSC should it ever be taken there.

This is a subject that infuriates me when people continue to think that everything and anything is copyrighted by slavish effort alone. In fact, I really wish people would not post their opinions of what is legal or not on this Message Board if they haven’t even heard of Bridgeman, the single most important case impacting this issue in the history of the Unites States.

Let me share once again key points of Bridgeman:

Please note as well that a collection of PD works may itself be copyrightable as a complete collection:

Bridgeman was an odd case in that it applied the laws of two countries in the final decision, but the court said it would have found the same if it had just applied the laws of the US. This is all online, easily Googlable.

Note the following:

  • Bridgeman only applies to reproductions of 2D works, not photos of 3D works, such as statues.

  • it can only be used as a defense in the US.

  • It DOES NOT prevent some dipshit from harassing you, threatening you, or even suing you over alleged “copyright infringement”. Anyone can pretty much sue you for anything, after all, regardless of whether it’s “right” or not.

  • Slavish copying does not create copyright. Think about it logically - if your purpose in taking a photo or making a scan is to accurately reproduce the original creative content as closely as possible, then…by definition, you are not adding your own creative input. Photographers tend to think that every time they click the button they are creating a new and profound work that is inviolate in its originality. Too bad the courts don’t agree.

I advise anyone who wants to argue this to Search on this Board first, then Google a bit, and read USENET a bit, before covering the same ground.

Please also note that IME scads of libraries, galleries, and online collections will claim that all scans are “copyright” of them. Well, I can claim my cat’s pawprints are copyrighted, it doesn’t necessarily make it true.

Also note Bridgeman does not prevent people on a message board from insinuating that you’re a thief or potential criminal - or giving you wrong advice and unintentionally making you into one. So don’t take my word for it as The Truth if you’re thinking of starting a business. Google on Bridgeman, Search for other threads on this Board, follow the resources and links, ask a lawyer, and see for yourself. I have asked several lawyers online for their interpretation of Bridgeman, as well as an IP lawyer IRL whom I work with, and all of them have agreed with me that Bridgeman is unambiguous and likely unchallengeable in the US, and that it should be a very powerful defense. I did this because my UnaLouvre has nearly 3000 Public Domain works on display, and I needed to know that I was in the clear before I underwent that effort.

And like I said, it’s just common sense. If your purpose is to make an accurate reproduction of a PD work that maintains all possible original creativity, then by definition it is slavish copying, which is not copyrighted. This does piss off some photographers, and people that don’t believe in the whole letter and spirit of “Public Domain”, but that’s not really something I can help, nor that I care about.

Some links:
Here’s a link in the UK which doesn’t think much of the case. Of course, being the UK, it’s a moot point, so really their entire article boils down to “It doesn’t affect us since we’re not in the US”. I love their use of dismissive “doubtful authority”…

Here’s a fairly reasoned discussion, which agrees with my points, and in fact looks for ways to do an end-run around it by use of “click-through” licenses, something I also know a bit about (and I feel they are wrong and their ideas would be uneforceable, but that’s a different topic).

I found a link that might be helpful:

My summary of above: maybe.

Your link is interesting, and appears to agree with my positive assertions and supporting links. Respectfully, I’m uncertain why your opinion is “maybe”…is there another issue or aspect which hasn’t been properly brought up, or which is incorrect?