I may as well admit from the outset that this blog post has only the most tenuous connection with the law. I recently stumbled upon a brilliant website dedicated to Renaissance art… Ugly renaissance babies pretty much lives up to expectations. WARNING: It is a dangerously distracting blog.
Not a fan of the Renaissance? Need something a bit more modern and up to date? My Daguerreotype Boyfriend offers an alternative take on early photography and similar hours of amusement.
In an attempt at adding a legal perspective to an otherwise frivolous blog post, I hereby reopen the debate as to whether a photograph of a painting (or other art work) can ever constitute a separate copyright work. In other words, if one of the submissions to either website is made by someone other than the photographer – is that person (or the website) potentially infringing copyright? It is worth noting that most images on both websites do appear to have been taken by the submitter (and in most cases the copyright has expired).
Luckily, many of these issues have already been considered by Francis Davey in relation to the NPG’s case against a wikipedia administrator who was accused of downloading approximately 3,300 high resolution images from the NPG’s database. This case (presumably) settled - a quick website trawl does not show much happening after the initial C&D letter (but any updates from readers in the know would be appreciated). In essence whilst the position is fairly clear in the US (a photograph of a painting does not attract copyright protection – Bridgeman v Corel), it is less clear in the UK. Rather than rehash the entire article, I refer interested readers to Francis Davey’s excellent blog.
For those less interested in such copyright intracacies, I hope you enjoy one or both of these irreverent takes on old art.
Finally, my haphazard internet browsing has unearthed WIPO’s photographer orientated (& user friendly) summary of the “legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People”. Enjoy.
Thanks digging up that WIPO link, Rosie. Very handy.
The wording of the Engraving Copyright Act 1734, implied that only engravings of existing works (prints and paintings) was protected. An issue was taken that there was no copyright in "original" engravings. This is amusing since it is precisely the reversal of the debate we are having now.
Of course paintings themselves were not protected by copyright, so an act protecting only copies of paintings might be seen as a reasonable way of protecting existing (unprotected) works for posterity or for wider distribution and therefore being a reasonable policy choice.
As we all know, Hogarth was the prime mover behind the 1734 act and he is probably the most famous of original engravers. He certainly wanted to protect his original work.
My recollection is that the matter was tested and the court decided in favour of original engravings, but I don't have the case to hand.
Thinking aloud here: I wonder if there's a case for a sui generis right, akin to the database right, for copies of existing works of paintings, drawings. It is no trivial thing, making a high-quality copy of a painting, particularly if it is large - say more than 4 sq m. Suitable equipment is very costly, set-up needs a lot of skill (to square off, ensure accurate colour, illuminate evenly, ensure sharpness to edges, etc.) The process bears more than passing similarities to the skill and sweat of brow needed to create a useful database from material that may, separately, be freely available. And as a digital image is but a collection of data points, we could have a go at arguing that a digital image of a painting is but a database that samples the population of visual features of the art work. After all, why shouldn't NPG and Bridgeman et al be able to exploit the sweat of the museum photographer's brow?
I will never forget the words of my Western Civilization teacher when discussing renaissance painting (and the developing understanding of proper anatomy in medieval and renaissance works). "Look at the baby Jesus, he looks like a used car salesman! He has a receding hairline!"
Thanks for the great link!
Post a Comment