Copyright Aid

Dear Friends

I would like to use a painting on Wikimedia Commons on a
book cover. The artist died in the 1700s and the original is
in a museum in Austria. Is it ok to use this image? I will be
printing in the UK. Many thanks

The Wikimedia entry says:

"This is a faithful photographic reproduction of a two-dimensional, public domain work of art. The work of art itself is in the public domain for the following reason:
This work is in the public domain in the United States because it was published (or registered with the U.S. Copyright Office) before January 1, 1923.
The author died in 1787, so this work is in the public domain in countries and areas where the copyright term is the author's life plus 100 years or less.

This file has been identified as being free of known restrictions under copyright law, including all related and neighboring rights.

The official position taken by the Wikimedia Foundation is that "faithful reproductions of two-dimensional public domain works of art are public domain".
This photographic reproduction is therefore also considered to be in the public domain. In other jurisdictions, re-use of this content may be restricted; see Reuse of PD-Art photographs for details."

Hi Learning,
I haven't been deliberately ignoring your posting, but I thought this was an ideal topic for our new member bakerandrannells since he/they are attorneys based in the US and specialize in the intellectual property field.
In the meantime, here's my 2 cents worth.
Unquestionably the original work is out of copyright. However as you seem to be aware the US and European courts (especially those in the UK) hold different views over whether photographs of artworks are sufficiently original (in the copyright sense) to attract protection separate from any copyright which may once have existed in the painting itself.
I assume that in addition to having your book printed in the UK, it will also be published here. On that basis I think it would be sensible to examine the worst case approach, that is to say the position in UK law.
The statute only says that to gain copyright a work must be 'original' (ie that it originates from the mind of an individual and does not copy another work). Here of course photography falls into a special case, because most instances a photograph is a copy of what appears in front of the lens. In interpreting the law, the courts take a broader view and consider that in most cases a photographer will have made a number of subjective decisions, for instance about what to photograph, how to arrange the framing of the shot, the angle of view, what allowances need to be made for the lighting (either natural of artificial) in order to get the correct exposure and so on, and these may make his work original. Arguably with modern digital cameras, many of these factors are automated, and need not fall to the photographer to decide. Nonetheless a professional photographer, especially one who specialises in photographing works of art, will need additional skills in order to faithfully record the colours used in the painting and to light it evenly so as to bring out the texture of the paint medium and so on. So, if the photographer in your particular case can demonstrate that he used sufficient skill and labour in the way he photographed the painting, such that his photograph demonstrates an element of his personality, then he may well have a claim to copyright upheld by a court, and it would follow that any use of his work without his permission would amount to infringement.
As you know, some US courts take the opposite view, which is why Wikipedia, as a US based foundation, are of the opinion the photograph is in the public domain.
I suggest you try to find out the identity of the photographer and if he is a US citizen, it may be that he too accepts that his work is in the public domain. However if he is a European citizen, or is domiciled here, he may feel he has good claim to copyright. Of course that doesn't automatically mean he will seek to enforce his rights; he could be happy that his work serves a greater good by making this painting accessible to people who would not be able to visit Austria to see the original itself. All of this may only become clear once you can identify the photographer. Ultimately if other means of tracing the photographer fail, the Austrian museum may know his identity since they would have had to give permission for the painting to have been photographed. Further, they may know its claimed copyright status, as this might have formed part of the terms they imposed on the photographer in exchange for allowing access to the painting.
If all of that proves fruitless, try searching some of the art picture libraries (like Bridgeman Art Library, but there are others) to see if they have images of the painting which you could licence for use on your book cover.

Dear AndyJ

Thank you so much for your enlightening reply- I contacted the
photographer and am waiting to hear back from him. I think he
lives in Austria. There are a couple of other versions on the
wikimedia page but he just says next to his version that it is
higher resolution. I asked him if he is the owner as he might have
copied it from elsewhere.

If you don't mind, A couple of other questions:

What does the 'claimed copyright status of the painting' mean?

This painting can be found in many places on the internet without
a watermark, so how would the photographer realise that it is his?

If I were to modify it in any way, does the copyright, if there is one,
still uphold?

What would the worse case scenario be if I went ahead and
used the painting?

I would be more than happy to pay someone something
reasonable and have peace of mind- this uncertainty is very
disheartening.

Many thanks for your help- it is much appreciated.

Kindest regards

Learning

Hi Learning,
I'm glad you have found the photographer without too much difficulty.

When I used the words 'claimed copyright status' I was referring to the photograph not the painting. It occurred to me that the museum might be aware whether or not the photographer was claiming copyright, because the museum themselves might be interested in using the image on their merchandise etc.

If the photograph is in copyright (a big 'if' based on my earlier comments) then modifying it without permission would possibly be infringement, as adaptation of a copyright work is one of the copyright owner's rights.

As for the worst case consequences, this would probably be if the photographer claimed copyright but denied you permission, and you went ahead and used his image anyway. That could amount to flagrant infringement and lead to higher damages being awarded against you. As well as damages, the photographer could ask for an injunction to prevent any further infringement (for instance if your book was available in ebook format) and destruction of any unsold physical books which had the image on the cover.

However, a much more likely scenario would be for him to write to you to complain and for there to be a negotiated settlement (with or without legal representation) not involving the courts. Since you say you are prepared to pay a reasonable sum to license the use of his image, this would seem to be the cheapest (for both parties) and least painful way forward.

Incidentally, if the photographer fails to reply to you, and you decide to go ahead, but the photographer then tries to take action against you in the UK courts, you would have strong grounds under section 97 if the CDPA for not being liable for damages:

97 Provisions as to damages in infringement action.
(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

• (a) the flagrancy of the infringement, and
  (b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

However all of that pre-supposes that copyright does actually exist in this photograph.

Thank you so much Andy.

That was very helpful. He still has not replied to me- will wait and see.

Hope you don't mind me asking another question- there are
images that I would like to use inside the book and these are not paintings
but line drawings and the artist died hundreds of years ago too. They
are found on a Russian website as well as many places on the internet
and I assume that they are scanned images and not photographs,
because the original images were published in a physical book
and are not located in any museum- as far as I know.

If these images have been scanned and the artist died hundreds of
years ago, can we deduce that no artistic addition can have been
made by merely scanning the images, so it is not possible for
them to be subject to copyright?

Thanks for all your help and hopefully this is my last question!!

Hi Learning,
I think you are on pretty safe ground if you are sure something has been scanned because as you mention it would be hard to claim any creativity in that process. Although, don't forget that an illustration in a book could be photographed just as a painting can. And s4(2) of the Copyright Designs and Patents Act defines a photograph thus:

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

which arguably a broad enough definition to describe the operation of a scanner.