Copyright Aid

Hi, a relative has written an original book that contains many images of copyright expired / non copyrighted artworks, however from my limited research it appears under UK law there is at best uncertainty around the application of copyright to photographs of artwork and at worst the view seems to be that a direct photograph of a painting is an original piece of work and hence can claim copyright.

These are all 'slavish' copies of the originals and I am confident they would be covered by the Bridgeman vs Corel landmark case under US law.

If he were to publish in the US would he be covered or could some of the copyright holders attempt to use UK law to sue / takedown.

The book is the culmination of years of research and is more an academic paper than a means to generate revenue. Obviously he wouldn't mind some small recompense for his years of research if allowable but that is not the primary motive, he is more than happy to release it not-for profit if necessary. He has spent many years compiling his research and would like it to be released for the public in whatever way.

Questions:

1) Would he be covered if publishing a paper book in the US?
2) Would he be covered publishing a for-profit eBook on US servers?
3) a Non-profit eBook on US servers?
4) A website with the artwork images included, published on US servers?

Thanks in advance!

John

Hi John,
Fortunately we have a new member on here who is a US attorney specialising in intellectual property law so he should be able to give you a more definitive answer.
In the meantime, I think that if your relative hosts his work on servers based in the USA that will tend to be the appropriate forum in the first instance, should there be a claim of infringement. Certainly if anyone wished to get the site taken down they would need to use the US Digital Millennium Copyright Act (DMCA) takedown procedure. But if any of the photographers whose works the author wants to use are based in the UK and the book is available in physical form or online here in the UK, then there is nothing to stop them using the UK courts to bring an action, especially as the author would also appear to be based in the UK.
This causes a problem because UK law tends to be quite protective of photographic facsimile copies of otherwise out of copyright works. That said, there hasn't been a test case in the UK on similar facts to those in the Bridgeman Art Library case. The nearest case is called Antiquesportfolio.com v Rodney Fitch & Co, although there are also some dissimilarities between the two cases.
From a UK perspective, it would worthwhile for the author to try and track down the details of as many as possible of the photographers concerned. Where they are independents there is a higher likelihood that they may have used considerable skill in photographing the works in question, and this would strengthen a claim to a new copyright in the photograph. Where the reproduction has been carried out in-house by a gallery or museum etc, it is possible that a more mechanical method of copystand photography has been used, and since this will require less creative input by the photographer alone, such institutions would have a weaker claim to copyright. Incidentally, the approach under German and French copyright law would tend to be closer to the Bridgeman decision, than Antiquesportfolio.
And turning to US jurisprudence, not only do you have the Bridgeman decision (which is not universally accepted by all the federal circuit courts, by the way), but there is also the fair use doctrine which is much wider in its application than the fair dealing exemption under UK law. For example the UK fair dealing on works of research would permit a certain amount of quotation verbatim from another written work, but it wouldn't exempt the copying of a complete work such as a photograph. Under US law, the degree to which the new use is transformative is an important factor considered by the courts there. However conversely, the degree to which the new work (your relative's book) is a commercial enterprise will tend to count against fair use, whereas in the UK it would not be taken into account at all.
And finally, if the work warrants the additional research into the identities of the individual photographers or their agents, it may be possible to negotiate licences to use either all the images, or just those thought most likely to pose a risk of litigation. Ironically a greater risk may come from the big institutions who arguably may have a weaker claim to copyright, than from individual freelance photographers who may not have the means to pursue litigation.

Thanks for the comprehensive reply Andy, much appreciated! i'll take some time to digest what you've written and maybe have some more question!

Do you have the forum name for the US attorney you mentioned? I wouldn't mind bringing my question to his attention.

Thanks

Hi 3CX,
His id here is bakerandrannells, and here is the post where he introduced himself. I did pm him about your query but I haven't had a reply, and he doesn't appear to have logged in recently.

Excellent, thanks for the help!