He paints “reconstuctions” of Vincent Van Gogh’s painting and drawings. Since the works he’s copying are in the public domain, and since the benchmark for determining if a work has been copied is whether or not a reasonable person looking at the two works side by side could tell they were the virtually the same, and since color and percentage of image changed do not impact copyright, are this artist’s paintings copyrightable?
In other words, could this man’s artwork be reproduced freely, as to do so would essentially be copying someone else’s copies of public domain images?
This interesting question has been brought to you by Starving Artist, master of the run-on sentence.
A copy is a copy is a copy. It doesn’t matter whether it’s made by photographic reproduction, digital imaging or painful handcraft. It’s still just a copy of the original. If I reproduce a reproduction of a work still in copyright, I can’t think it makes any difference how the reproduction was made.
I mean, if I transcribed a copyright novel in longhand, and you then published a facsimile of my transcript, would you expect to be had up for breach of copyright in the original work? Why should it be any different for a painting?
Wouldn’t it make a difference whether it’s a straight copy, or he’s interpreting it in some way. “talented artist” and “reconstruction” suggests to me he’s doing something more than a photocopier, he’s adding to the painting.
This bit requires a copyright lawyer, but I thought that derivative works could be copyrighted provided you have permission to use the original.
Have you guys given more than a cursory glance at the site. He asserts :
"All of the paintings on this website are original works of art by Arnold Smith. The painting entitled “Park Entrance as seen through the Trees” is a reconstruction of a painting by Vincent Van Gogh.
In some cases, the paintings are inspired by pencil drawings of Van Gogh’s. Others are variations on a theme of some of his works. For instance, “Sunrise at Saint-Remy” is the daylight version of Van Gogh’s famous work “Starry Night”; however, it was inspired by the drawing for “Starry Night”, not the actual painting.
The original inspiration for the paintings on this website were the work of Van Gogh, but the concepts and paintings created here are the work of the artist, Arnold Smith. As Smith says, “Vincent’s blueprints, my paint!”"
Clearly none of his works are copies. Have a look at the stretch of imagination to come up with “Railway Locomotive at Arles”.
A couple of things, Shade. By “talented artist,” I meant his ability to paint in a manner virtually identical to Van Gogh’s in terms of color usage, impasto (the thick laying on of paint), and brushwork. However, copyright law holds that changing color and making minor variations to the image does not constitute a new original, but is still a copy. The criteria is whether a reasonable person could look at the images side by side and deduce they essentially the same image.
Secondly, I don’t know what the correct answer is to your belief that such a painting would be a permissable derivitive if painted with permission, however the original works are in the public domain now, and therefore the images belong to everyone. My question has to do with whether or not a person can repaint a public domain image in different colors and with minor variations in detail and have created a new, copyright protected work of art.
Copyright inheres in a work if it is ‘original’. This applies whether the work is a reproduction or new. Historically, reproductions have been considered to be ‘original’ works and therefore have been copyrightable, but only the extent that they are original. No reproduction, no matter how similar to the original, is completely without originality. There will be some differences. It is in those differences that you will find copyright protection.
Copyright in reproductions is very thin in that a reproduction is a copy. Where the original work is in the public domain, the reproduction may yet be protected by copyright, subject to the scope I mentioned above. However, where the reproduction is of a work that is still protected by copyright, then it may well be considered a derivative work. It is still copyrightable, but as you can see, certain exclusionary rights to the derivative work will remain with the author of the original work. Therefore, you might create a copyrightable reproduction, but still be subject to a suit for infringement by the author of the original work based on your publication of the reproduction.
And if you really want to get crazy with this thread, you might consider in what cases the fair use defense to infringement might come into play with respect to the publication of a reproduction.
Well provide me with a link to any of Van Gogh’s originals of the others and I will stand corrected. That would be Van Gogh’s daytime painting with the same aspect as “Starry Night” or the painted version of any of his sketches. Otherwise I fail to see how a painting based on a line drawing is a copy.
By far the easiest way to quickly locate a wide variety of his paintings woud be to go to Google’s Image Search and enter “Van Gogh” in the “exact phrase” field (and even better results can be had for some reason by clicking the “no filtering” button as well). This will save you a lot of the navigating you would have to do on a Van Gogh-related website. Google’s Image Search is here:
cj finn, thank you for the information, but your post raises a couple of questions. First, what if I were to copy Arnold Smith’s paintings as nearly as I could and then sell them. What sort of violation would I be liable for? Could he successfully sue me because out of a reproduction of a public domain work containing thousands of copies of the original brush strokes, a few of them matched his work rather than those of the original? In other words, could he prevail given that only a few of my strokes matched his? Would it be held that I fully violated a copyrightable work given that this work was almost wholly a copy of a public domain work?
I apologize. I seem to be having trouble organizing what I’m trying to say into an understandable question. Let me just say I would be surprised to find that a court or jury would find me in violation of a reproduction painting’s copyright because even though both of our paintings were close reproductions of the original public domain work, my painting contains a few small variations contained in Mr. Smith’s work rather than the original.
And secondarily, what if an artist painted as closely as he could a reproduction of a public domain work with the only difference being that he used the same color scheme as Mr. Smith and not use Mr. Smith’s actual painting as a guide to line and form? Would he be in violation then?
yosemitebabe, thank you for your post. You may see in the other thread where I said I’ll be back tonight. I think my motivations and aspirations will be clearer to you after I respond tonight.
You are welcome. Just so you know, I am an intellectual property attorney but this is not a legal opinion, just my own personal opinion based on what few facts you’ve given me. Besides, the law changes and every case is different, so don’t take my word for it, get thee to an attorney near you!
Anyway, if you copy/reproduce a painting you can get a copyright in your own work. But keep in mind that copyrights are exclusionary only, meaning that having a copyright ONLY gives you the right to prevent other from copying. Therefore, if you are copying another painting, you may be violating someone else’s copyright in doing so. So the situation is that you may be BOTH entitled to a copyright (in the original aspects of your painting) and liable for infringement, all at the same time.
As Yosemite Babe said, simply using the a color scheme likely isn’t going to get you into trouble. BUT, neither Yosemite Babe nor myself have seen your painting. While you might think that things are different enough, who knows what a competitor of yours might think?
Lawsuits stink. So if you are worried about getting too close to someone else’s works, consult an attorney and get a first hand opinion. Take in a few examples of your work and the originals and get someone to look at them. I would hate for you to produce an entire line of paintings and have the entire thing be unusable.
Check with your local arts organizations and see if they have a list of attorneys you could talk with or if they have some sort of consultation program. Along those same lines, check out any local law schools to see if they have a training program that would allow you to get a few students and their advisor to do a review of the artwork.
Don’t let me scare you here. From a practical standpoint, the only way you’ll get sued over a copyright violation is if you are financially successful with the works or have personally offended the author of the original. Unless there is some sort of vendetta hanging around out there, one or two copies aren’t going to get you sued, the RIAA lawsuits notwithstanding!
Thank you. I had a feeling you were an authority of some sort.
I understand, but I appreciate your advice and will take it just as you suggest: as an opinion only.
This is one of the reasons I’m trying to get my ducks in a row before I copy more modern works than the vintage posters and images I’ve been painting. I know for a fact that they are public domain images. With regard to Mr. Smith’s Van Gogh reproductions, I only discovered him and his website a few days ago and I haven’t as yet painted any pictures based on anything he has done. But I did think his paintings were excellent and they gave me a new perspective on how I might be able to breate new life into some of the public domain paintings that many people are already familiar with and perhaps make them more interesting, and thus more desirable.
Thank you for your concern. (I hope I’m not thanking you too much! It’s just that you’re a veritable font of thankable information and concern. ) But would an attorney actually be willing to go on record as giving me the go-ahead assuming he thought I was okay, or would he be more likely to just tell me he thinks it would be okay and then leave me to twist in the wind should someone bring an action?
An excellent suggestion.
This has been my impression all along, but I wasn’t sure if my assessment of the situation was fairly accurate. Again, thank you.
“In order for a work to be protected by copyright it must be ‘original’ in the sense that it is not a mere copy of another work. If it is sufficiently original, the work is likely to be protected by copyright in its own right, even if it is derived from a pre-existing work. An example of a derivative work that may be separately protected is a three=dimensional sculpture based on a two-dimensional drawing.”
The Council has a large range of very clearly written Information sheets and an Advice link that allows artists to receive free legal advice from Council lawyers by email.
Australian/US free trade agreements generally mean that there are ‘agreement on standards of copyright protection’ between the countries and presumably many others.
The de facto answer is that the creator of a reproduction based on a work that has matured into the public domain would have to convince a court that the alleged infringer copied from the reproduction rather than the original. If the differences are subtle, good luck.
Sadly, StarvingArtist, so many people try to answer these sorts of questions here without considering the landmark Bridgeman v. Corel case. And even those who do know about seem to think that there’s something “wrong” with the concept of a copy of a public domain work which has no substantive creative or original content being in the public domain itself.
The whole name of the US case is BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36F. Supp. 2d 191 (S.D.N.Y., 1999), which essentially dealt with Corel making and distributing copies of public domain artworks owned by the Bridgeman Art Gallery. Wherein it was found that:
The Court in deciding on Bridgeman did consider UK copyright law AND US copyright law, and the court found that it would have come to the same decision under either application. Note, however, that Bridgeman as a ruling could only be used as a defense in the US.
So in your case, if the artist is trying to create exact reproductions of VanGogh’s work without adding creative or expressive content , then it is certainly arguable under Bridgeman that his works are now in the public domain. That is, if his stated goal is to be indistinguishable from the original, then they seem to be public domain.
Note as well that Bridgeman only addressed 2-D artworks, not 3-D.
People also think that there is this issue of effort == copyright and effort == new creative content. Effort alone is not creative and effort alone cannot create a new copyright.
Generally, the case comes up when someone takes a photograph of a public domain artwork, or scans a public domain photograph, and then puts it up on a website claiming “all scans copyrighted by (person)”. Some photographers are an odd lot who sometimes feel that every single time they click that button they’ve automatically created an irrevocably new copyrighted work, regardless of the situation, circumstances, or subject matter.
But then, people really like to try to think that any effort they do, even slapping a book down on a scanner, is somehow adding creative content. Ironically, they see nothing wrong with THEIR scanning the book, only someone else downloading “their scan”. Thankfully, not only does Bridgeman tell us that they are full of shit, but Bridgeman has been a hot topic in the museum community since its ruling, and it is unlikely IMO to be challenged. I wrote much more at length on this, with cites, in a recent GQ thread.
In addition, if you can prove that the person making the claim of copyright has fraudulent intent, you can refer them to:
UDS, yosemitebabe, cj finn, don’t ask, Steve MB, Mighty Maximino, and Una Persson. Thank you all for taking the time to respond and for your helpful and educated answers. I think I’m on pretty firm ground now with regard to how I should proceed. Thank you all again.
