Public domain art in a documentary at DVinfo.net

Steve Siegel · August 9th, 2011, 06:55 PM

Here is another thread about the ability to use public domain material that is in the possession of a private individual. In this case the individual is a major research library.

The material (art work) was produced before 1910. The artist died in 1927. Even under the latest extensions of copyright protection (the Sonny Bono Act,1998), the art is clearly in the public domain. The library charges a fee for reproducing the artwork. Perfectly reasonable. But they also impose licensing fees and restrictions for use, whether for profit or non-profit projects. They own the painting, but they do not own the 101 year old "art". I maintain that once they provide someone with a reproduction of what they own, then, in this case, they no longer have rights over the copy, and have no business charging license fees. Am I wrong?

Sareesh Sudhakaran · August 10th, 2011, 05:18 AM

Are you in possession of the actual artwork? If no, then you can only use a photograph of it. Have you taken the photograph yourself? If no, then do you have written authorization from the person who did? If no, then you cannot use the 'photograph of the artwork'.

I tried the same a few years ago by getting in touch with the estate of an artist.

The cheapest way is to buy stock footage of the art from the web - but it has to be licensed. Best to get in touch with an attorney if you're really serious about getting it done.

Kevin Wolff · August 10th, 2011, 07:00 AM

You should consult an attorney, rather than looking for answers to legal questions from your fellow non-lawyers here. This is particularly true where, as here, you are raising what could be a somewhat complicated legal question in circumstances in which you know that the other party is taking a different view than the one you have staked out, so there is a risk that a dispute will arise. It may well be that the owner of the painting is entitled to impose whatever conditions it wants in connection with granting parties like yourself access to reproduce the painting, as a matter of copyright law or otherwise, I don't know. If you decide to proceed based on your own legal analysis (whether or not someone here agrees with it), you would be doing so at your own risk.

I personally would license the right to use the painting in question, find another painting to use where my rights were clear, or consult with a lawyer about your right to use the image without licensing, probably in that order depending on the size of the licensing fee. Even if I found I had the right to use the painting without paying the fee, however, I would likely still want to opt for option 1 or 2, rather than waste the time and energy of getting involved in a disagreement about the matter with a non-profit.

Just my 2c, since you asked.

Kevin

Don Litten · September 20th, 2011, 02:13 PM

I agree with Kevin. There are no black or white answers. Depending on how it's used, it could even be fair use or a dozen other exceptions. I get different answers from different lawyers at times.

Even if you are in the right you could still be sued. If you aren't up for that kind of fight, license it....

And yes, it is a needless, complicated mess.

August 9th, 2011, 06:55 PM	#1
Steve Siegel Major Player Join Date: Nov 2001 Location: Albuquerque, New Mexico, USA Posts: 840	Public domain art in a documentary Here is another thread about the ability to use public domain material that is in the possession of a private individual. In this case the individual is a major research library. The material (art work) was produced before 1910. The artist died in 1927. Even under the latest extensions of copyright protection (the Sonny Bono Act,1998), the art is clearly in the public domain. The library charges a fee for reproducing the artwork. Perfectly reasonable. But they also impose licensing fees and restrictions for use, whether for profit or non-profit projects. They own the painting, but they do not own the 101 year old "art". I maintain that once they provide someone with a reproduction of what they own, then, in this case, they no longer have rights over the copy, and have no business charging license fees. Am I wrong? Last edited by Steve Siegel; August 9th, 2011 at 06:56 PM. Reason: typo

August 10th, 2011, 05:18 AM	#2
Sareesh Sudhakaran Trustee Join Date: Jan 2008 Location: Mumbai, India Posts: 1,385	Re: Public domain art in a documentary Are you in possession of the actual artwork? If no, then you can only use a photograph of it. Have you taken the photograph yourself? If no, then do you have written authorization from the person who did? If no, then you cannot use the 'photograph of the artwork'. I tried the same a few years ago by getting in touch with the estate of an artist. The cheapest way is to buy stock footage of the art from the web - but it has to be licensed. Best to get in touch with an attorney if you're really serious about getting it done. __________________ Get the Free Comprehensive Guide to Rigging ANY Camera - one guide to rig them all - DSLRs to the Arri Alexa.

August 10th, 2011, 07:00 AM	#3
Kevin Wolff Regular Crew Join Date: Jan 2006 Posts: 51	Re: Public domain art in a documentary You should consult an attorney, rather than looking for answers to legal questions from your fellow non-lawyers here. This is particularly true where, as here, you are raising what could be a somewhat complicated legal question in circumstances in which you know that the other party is taking a different view than the one you have staked out, so there is a risk that a dispute will arise. It may well be that the owner of the painting is entitled to impose whatever conditions it wants in connection with granting parties like yourself access to reproduce the painting, as a matter of copyright law or otherwise, I don't know. If you decide to proceed based on your own legal analysis (whether or not someone here agrees with it), you would be doing so at your own risk. I personally would license the right to use the painting in question, find another painting to use where my rights were clear, or consult with a lawyer about your right to use the image without licensing, probably in that order depending on the size of the licensing fee. Even if I found I had the right to use the painting without paying the fee, however, I would likely still want to opt for option 1 or 2, rather than waste the time and energy of getting involved in a disagreement about the matter with a non-profit. Just my 2c, since you asked. Kevin

September 20th, 2011, 02:13 PM	#4
Don Litten Major Player Join Date: Jun 2010 Location: Richmond Va Posts: 400	Re: Public domain art in a documentary I agree with Kevin. There are no black or white answers. Depending on how it's used, it could even be fair use or a dozen other exceptions. I get different answers from different lawyers at times. Even if you are in the right you could still be sued. If you aren't up for that kind of fight, license it.... And yes, it is a needless, complicated mess.