If I take a photo ...

Started Jan 29, 2013 | Questions thread
Rdefen
Veteran MemberPosts: 3,149
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Re: If I take a photo ...
In reply to tasad, Feb 5, 2013

tasad wrote:

... of an art painting ( not mine ) - who owns the copyright ? For example : If I take a shot

of P. Picasso's ​" Guernica " - can I mark the photo " Copyright - tasad " and enter ( for example ) a DPR challenge " War.." ?

(1) usual disclaimer that for legal advice hire a local lawyer and the below is for discussion purposes only;

(2) I assume US law applies; and

(3) I make certain assumptions concerning the photo you are making.

If you a making a photograph that reproduces a painting this constitutes a reproduction of the painting, which is one of the exclusive rights reserved to the copyright owner of the painting.

If the painting is in the public domain then you don't need permission to reproduce it as far as copyright is concerned (though you may need permission to get access to it to make your photo).

However, if all you are doing is trying to reproduce the painting with "absolute fidelity" (to quote the Judge in the case on point) you are going to have a problem asserting copyright in your photo because you will fail the originality requirement for copyright, even though it may take significant technical skill to make such a photo.  This "slavish" copying may be the only area of photography where copyrightability is a problem.

So under these facts, you're either an infringer of the Copyright owner of the underlying painting or you will have a problem asserting copyright in your photo. Or to answer your question, no one owns a copyright in the photo because it is a slavish reproduction of a public domain work.

Now the case on point for the latter proposition is out of the Southern District of NY (essentially Manhattan) and a lot of folks (like museums and the original losing plaintiff in the case which was a British based entity) like to pretend the law doesn't exist or hope that it won't hold up in other jurisdictions in the US.  So they ignore it. Which explains why museums assert copyright in their photo reproductions of underlying public domain art work.  But as Jerry Maguire might say, show me the case law which supports it.

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