U of S | Mailing List Archive | alt-photo-process-l | Re: A question of copyright

Re: A question of copyright

Hi Don,

Thanks for the informative reply. Due to the age of these things I'm more concerned with the 'morality' of reproduction of these works. I think it becomes even more of a concern if  prints from these slides are sold. I am slightly uncomfortable with that aspect at the moment, although the chances of me ever selling any artwork are somewhat remote! It seems such a shame to me that these images, which were supposed to be displayed to a large audience, may be lost forever. It's a balancing act.


David H 

On Mar 7 2007, Don Sweet wrote:

I think there are two legal issues, copyright and moral rights. Dealing with copyright, the law takes a pretty standard form around countries using the common law system (such as USA, UK, Australia and New Zealand), and the position here seems to be:

1. If the lantern slides are pre-1945, then copyright has expired, so the lantern slides are in the public domain and may be freely reproduced.

2. If the lantern slides are incorporated in new images, then the new images would be entitled to their own copyright, but only if those new images modify the lantern slides in a significant way.

3. If the new images are simply copies of the lantern slides, then the new images are in the public domain too.

4. Although the new images as a whole may not be in the public domain, the included reproductions of the lantern slides may be copied by anybody else without permission (provided they can be separated out from the new images).

There are also generally acknowledged moral rights of artists, which include the right to be identified as the producer of one's own work; not to be identified as the producer of anyone else's work, to protect the integrity of the work against mutilation and distortion, etc. Moral rights have no set duration, and may be said to last as long as the artwork survives. In some countries using the civil law system such as France, moral rights give the original author control over an enormous ranges of peripheral things, such as the polilical context in which the artwork may be displayed, performed etc.

Moral rights are not given equivalent legal protection in countries using the common law system. There is some recognition of moral rights in USA under the Visual Artists Rights Act, but it is really just a slight broadening of copyright protection, and subject to the same time limits and exceptions (such as "fair use"). Much the same applies in the UK under the Copyright, Designs and Patents Act.

Beyond the legal principles everyone will have a view on the propriety of reproducing other peoples' work in the public domain. For myself I cannot see that it does any harm, and on the positive side it may have the benefit of making heritage items cheaply available to a wider audience. Copying great artworks is an activity long permitted in european art galleries (there must be lots of photos of tourists standing in front of Starry Night looking at the photographer not the painting). It may help develop new artists too - although I heard that in the years before Courbet's L'origine du Monde was put on public display, d'Orsay museum let some budding artist have lengthy private sessions so he could copy it, but one day he abruptly packed up and stormed out and was never heard of again, so there is probably a lesson in that.

Don Sweet

----- Original Message -----
From: "BOB KISS"
Sent: Wednesday, March 07, 2007 3:36 PM
Subject: RE: A question of copyright

There is the famous case of Neil Folberg (sp?) > whose photos were
made into paintings by someone in Europe without > Neil's permission. He
> sue and won his case. Soooooooooooo, one must definitely not think > that
reproducing a work in another medium avoids copyright > questions. Also
"changing a few things" in a work does not make it > O.K. to copy it and
> it your own. Court precedent threw out that argument soon after the > "new"
copyright law took effect in the US (around 1983?) Neil's > case makes it
clear that changing media doesn't help either.
> Here in Barbados where aesthetic sense is a bit backward, many
> painters used to poo-poo photography as an art form. Then these same
> painters would make EXACT copies of our photos as paintings and sell > them
for thousands. I got fed up and wrote an article in our local > art
> indicting them by accusing them of believing that, if we didn't put > paint
> canvas, we aren't REAL artists but then they steal EXACTLY what makes > us
artists...our VISION...and make exact copies in > paintings...which they
> are REAL art because you apply paint on canvas by hand. I used to feel > I
was in a time warp at the beginning of the 20th century! Well, > needless
> say, I made some enemies but things have changed for the better since
> then.
> -----Original Message-----
> From: Katharine Thayer [mailto:kthayer@pacifier.com]
> Sent: Tuesday, March 06, 2007 2:31 PM
> To: alt-photo-process-l@usask.ca
> Subject: Re: A question of copyright
> On Mar 5, 2007, at 11:26 PM, Judy Seigel wrote:
> >
> > There's also the fact that when a prior work is *changed* it
> > becomes freedom of expression, parody, quotation, fair use,
> > whatever.... Photographs are often used in other art. When I was
> > an illustrator I used a "scrap file" for reference.... Sometimes
> > folks actually recognized my original (I liked famous photo
> > portraits by Penn, Avedon & company from Vogue... that was before
> > we all had cameras and could snap our own reference.) And
> > perfectly legitimate, no law suit possible.

I think sometimes artists get "fair use" mixed up with > "derivative
work;" they are two different things. Fair use is > allowed, as in
copying short excerpts or using pictures of work for > teaching or
critical purposes, but the right to make a work that > derives from
other work is reserved to the author of the original > work, under US
copyright law. There are five rights protected under > US copyright
law: the right to reproduce the work, the right to > prepare derivative
works, the right to distribute copies of the > work, the right to
perform the work, and the right to display the > work.

The US statute (code 17) defines derivative work as > follows:

A "derivative work" is a work based upon one or > more preexisting
works, such as a translation, musical arrangement, > dramatization,
fictionalization, motion picture version, sound > recording, art
reproduction, abridgment, condensation, or any other > form in which a
work may be recast, transformed, or adapted.
I am acquainted with a famous photographer who was not amused to > find
one of his photographs represented in a painting that was > exhibited
at the Whitney Biennial several yeas ago, and he > certainly had
grounds for a lawsuit, although I doubt he pursued > it, as he's not a
litigious kind of guy and wouldn't want to spend > time on it. But he
was NOT happy, and felt (legitimately, as I read > the law) that his
copyright had been violated.

And > recently, in a local example, the designer of a coin celebrating
> Lewis and Clark used, as a basis for his design, a photograph by a
> local photographer that he found on a website. When the
> photographer brought the similarity to the U.S. Mint's attention, the
> designer admitted that he had in fact used the photographer's work > as
the basis for his work. I don't think there was any lawsuit, but > the
designer and the Mint did at least acknowledge the photographer > as
the holder of the copyright of the original work that the design > was
derived from.