Items in the Public Domain

[Chris Swanberg]

I have a question I am hoping I might get an answer to. I want to use images of some old paintings (done around 1900-1910 and hence in the public domain as I understand it).

I have some art books (copyrighted in their own right) that contain reproductions of those images in their pages.

Can I copy and use those images that I might take from the art book (in other words the images from 1900-1910 as represented in the art book) in my own work without running afoul of any laws, rules or restrictions? (Copyright or otherwise?)

Chris Swanberg

[Paul R Johnson]

As you say, the photos are copyrighted - so the answer is no.

[Chris Swanberg]

Well I guess the question is, can *someone* acquire a copyright in items already in the public domain by republishing them? I am thinking the direct answer to that is no... it would seem that original works by the author within the book (even including headings on the photos of the art) may be subject to copyright, but not the images already in the public domain themselves...but of course that is why I am asking. Thank you for your reply.

[Steve Siegel]

I have looked into this a bit, and this is my non-lawyer understanding of it. The copyright to any work of art belongs to the artist, his heirs and assigns. There is a time limit that involves 75 years (After the work? After the artist death?). Copyrights can be renewed, but often aren't. Once the time expires they go into public domain. Anyone who uses the art during its copyright, even with the artist's permission, has created a derivative work, and has no right to the original art, only to his derivative piece as a whole. If someone took a photo of Abe Lincoln, say, and used it in a collage, you could probably get away with copying the photo from the collage (if that was the only way you could find the photo), so long as no collage-identifiable material was included. I am using some Audubon images in my UWOL long form entry, taken from a recent book, so I hope my conjecture here is accurate. It would be mighty expensive to go out and buy the originals.

[Chris Swanberg]

Well, I have to admit I AM a lawyer, albeit not versed in IP law - so on this point am not really any better off than someone who is not a lawyer.

I have done *some* homework and realize that Copyright issues are slightly complicated, but in very general terms if the item was produced and "published" pre 1923 (I think that's the year anyway - without re looking it up) it is in the public domain. The art pieces I want to use were made by Charlie Russell in a time well before that, and I think them them to be in the public domain at this point as a consequence.

(That said, artistic works made closer in time to the present may have a copyright for a much more extensive period of time than the early 1900 stuff. Analysis here is not a one size fits all thing.)

So, (and assuming I am right about public domain on this) if I find public domain work published somewhere, does the person who published it have any rights to claim some exclusive right to that image, or more succinctly have any rights to prevent me from using it myself in my own work, or recover any damages should I do so without permission? (assuming it is copy of the original and no alterations or changes to it have been made, as in the case of famous old artwork such as this.)

I am thinking not, but not being particularly well versed in this area, I was hoping smarter minds such as exist on this site on IP issues might be able to shine a light on this interesting question.

[Chris Barcellos]

hey Chris, check this article from Stanford out. I think you are okay. Second paragraph seems to cover your issue. Of course that is just like a headnote... so take care.
Stanford Copyright & Fair Use - Welcome to the Public Domain

[Chris Swanberg]

And there is actually a case, Bridgeman Art Library v. Corel Corp. - 36 F. Supp.2d 191 (S.D.N.Y. (1999) that supports my interpretation, (based on the facts of that case, which was a collection of high resolution photographs of famous oil paintings which Corel used in a commercial product for which they were sued by the maker of the photographs, who lost their case) but the vagaries of this area of law was making me hope Paul Tauger might share some of his wisdom with us.

[Steve Siegel]

This Wikipedia entry Derivative work - Wikipedia, the free encyclopedia describes an interesting case called the Annie Lee case. Apparently an artist sued a guy for taking his pictures, glueing them to tiles and selling them as decorative tiles. He sued for making an unauthorized derivative work or copyright material. The defendant won the case! The judge decided that there was no artistic modification of the original pictures by just glueing them to tiles, and the result, then, could not be called a derivative. Whether the original artist went back and sued for just plain illegal use of his copyright stuff isn't mentioned.
I still think that use of old pictures from books without identifying material from the book is fair game.

[Chris Swanberg]

Steve... I am of the same mind - especially in your case with Audobon art works from what? 1850'ish which are CLEARLY Public domain, and a republication by anyone is as you put it "fair game" or unprotected material, (absent any artistic modification of course <g>)

[Robert Rogoz]

I do not know about art (like sculpture or painting), but a lot of music (even from previous centuries) is not in public domain. So you have to be really careful in your assumptions in this matter, as a mistake might cause a lot of problems in the future.
I do not know how this situation would work as "fair use act", it might be argued both ways.
I think the way to go would be to contact a publisher of the book. First of all you would find out if the paintings are in the public domain. Second you might be able to obtain a written permission from the printer to use their printed material (yes the book itself is protected). I was pleasantly surprised in the past how easy it is sometimes if you ask nicely.

[Paul R Johnson]

Interesting this! You cannot take a photo of a painting in an art gallery, yet the copyright in the original painting is long gone. Obviously ownership is not disputed, but that isn't the same as copyright. So on private property, I assume you have no legal right to take the picture, even if the item the picture is taken of is not covered.

I suppose what we are skirting around is that with something like the Mona Lisa, or Constable's paintings, they are well known, and quite common - do a Google image search to see how popular. My guess is that many of these images are simply copies of copies of copies, with no indentifiable source. If you found a good quality scan of a famous, but out of copyright painting - even if you wanted to compensate the photographer, how would you actually find them?

[Chris Swanberg]

Actually what museums control on old paintings is access to create a copy, not a copyright. They have the right to say what you can and cannot do on their premises, and take photographs is not one of the things they want you to do (for a nunber of reasons, some relating to maintaining the condition of the paintings) but if you can take your own photograph, then you don't need to buy one in the museum shop, do you?

That is the issue with a lot of public domain stuff... e.g. if I own it, I am under no obligation to let you use it, and hence can charge you for allowing you access to it. Often Museums and Archives charge a minimum $50 or so for the rights to use a reproduction image of something they have but that you have no other way to get. They often restrict you to a maximum resolution in electronic format, like on a CD, to low rez so it is more or less unuseable elsewhere. It's their right to control your access when you have to get it through them. But do you HAVE to get it through them? Not always.

With the current state of electronic reproduction, this area is under seige...because now I can GET a pretty good copy to use from print media published previously.

Of course, this entire discussion is predicated on the item being in the public domain, and sometimes that is not THAT easy to discern.

Complicating the issue, is that if you want to sell a piece to a commercial concern that contains images, they often want some assurance those images are cleared... and even if you didn't NEED permission from a museum/archive, etc, they may insist you get it (and that means pay for it).

Then there is the "honor" of some professionals who try and make sure they can vouch for their use of every image they publish. (And the "honor" may be more of a way to make sure they always have the requisite clearance some publishers require.) These folks often get advances, and have $$ to pay the prices.

Robert: Sculpture presents its own issues, because it is 3 dimensional, and because how it is imaged (angle, lighting etc) in itself requires some artistic input and the image of the sculpture CAN therefore be copyrighted(!), even though it is of an object long since public domain. Music I know nothing about, but *doubt* the accurancy of a statement that centuries old music is NOT public domain. Copyright law in the USA does not distinguish between pre 1924 music and artworks for example as best I understand. (We are talking the music score now.)

For example, if the New York Philharmonic played a John Philip Souza march that was in the public domain, THEIR performance would be subject to copyright restrictions due to the artistic endeavor involved in making it.The sheet music they used would not as I understand it, barring some modification of the arrangement by them prior to it's performance.

[Robert Rogoz]

Chris, this is the exact situation I am referring to:
"Classical music can be performed by one person with a guitar, flute, synthesizer, piano, or harp. It can be played or sung by any combination of instruments or voices, either acoustic or electronic. Even if the composer is no longer above ground, his or her work can be protected by copyright law for 95 years or longer. Works created after January 1, 1978 can be protected for the life of the composer plus 70 years, before those works move into the public domain.

"Assuming all classical music is in the public domain is a common misconception," said Dr. Barbara Petersen, Asst. Vice President, Classical Music Administration for BMI. "There are many contemporary composers creating music for soloists, ensembles, movies, opera, and theater companies. Whether music sounds new or old does not determine its copyright status."
quote from BMI.com | Playing Classical Music Raises Copyright Questions for Business Owners
Also you can download interesting article here: SSRN-The Emergence of Musical Copyright in Europe from 1709 to 1850 by Frederic Scherer
It discusses the issue in Europe in detail.
I also found this:
"In the European Union copyright lasts for the lifetime of the composer+70 years. So any 'classical' or 'concert' music written by a living composer (John Adams, Philip Glass say) is definately within copyright. So is any music written by a composer who has died since 1939.

Music of composers who fall outside this time frame is prima facie in the public domain with the big proviso that an edition of older music may give rise to new copyright (see Sawkins v Hyperion Records, full judgement available at http://www.bailii.org/ew/cases/EWCA/Civ/...
So as you can see that puts a lot of music even from 18th century on out of public domain.

[Chris Swanberg]

When a work becomes part of the public domain is subject to an analysis that will vary depending when the work was first published. If it was published before 1924 [In the USA], is is in the public domain. For works published after, there are a number of variations and the answer will depend on when it was published, and depending on when, in some cases what steps were taken to renew a copyright (again time dependent and varying) etc.

So for works after 1924, it is a rather more complicated analysis, and the rules are different for different publication periods.

So lets turn to your quote.

"Assuming all classical music is in the public domain is a common misconception." Whether such an silly idea is common or not I'll leave up to that writer.

If someone is making a bald statement that if musical is "classical" it's public domain then they are totally missing the point. Classical music is still being written today. It is about WHEN the music was first published, not what it sounds like. Your article acknowledges this when it says "Whether music sounds new or old does not determine its copyright status." That is absolutely correct. It is all about WHEN it was published, not what it sounds like.

And then, there is the issue of artistic endeavor. Hence my example about the NY Philharmonic and Souza marches. Old music newly performed can give rise to a copyrightable performance recording by the artist performing it. It does NOT breath new copyright life into the musical score though and anyone can freely perform the same song without any copyright violation. Copying the NY Philmarmonic's performance and redistributing it though, is a no no, because they have a copyright on THEIR performance, though not the underlying musical score (again assuming no re-arrangement).

We are however starting to stray pretty far from my initial pondering at the start of this thread.

(reading your edits above, I will add I am using a hypothetical involving American law here, and using American artists)

A statement that centurieS old classical music is not in the public domain is somewhat of an overstatement. 1900's? Absolutely correct - much of it is not... 1800's? No so much so. 1700's?... Well you get the idea.

[Paul Tauger]

Sorry I missed this thread. It's doubtful whether a valid copyright covers the paintings, if your dates are accurate. Any such protection should have expired. It is not possible to obtain new protection by re-publishing a work that has already lapsed into the public domain, unless something transformative is done, and then protection only exists as to the new material created by the transformation. As an example, assume a photograph of Marilyn Monroe is in the public domain (none would be, but this is for illustrative purposes only). Andy Warhol's "Marilyn" work, which consisted of a panel of neon-colored, solarized copies of a photo of Marilyn Monroe would be a derivative work and independently protectable in copyright.