RE: Fwd: [AAUP-R] between the National Portrait Gallery and a Hard Place

Margaret Walsh wrote:
...
> a freelance graphic artist submitted a
> cover design which had several well-known images of Austen, including
> a colorized image of the 1811 Cassandra Austen sketch. The artist had
> gotten that image and others somewhere in the public domain.
....

Under UK law, the sketch and any photograph taken of the sketch are both artistic works. Copyright in the original sketch is long gone but in the photograph is likely to subsist. The owner of the work is the person who took the photograph (whether they had permission from the gallery or not) in the absence of any agreement to the contrary. In the absence of permission, there may be an action against the photographer but it should not affect copyright. Finding a couple of images on the net doesn't mean that they are in the public domain. A very large number of images available on the Net are placed there in breach of somebody's copyright. The source of the image is something that should be checked anyway.

Not having seen the original nor the colourized version, I would guess that the colourized version is likely to be an adaptation (like a derivative work under US law) rather than a reproduction of the original photograph. While the copyright law gives to owners of other types of work control over the creation of adaptations, it does not give any rights over adaptations of artistic works. I believe that, regardless of who owns the photograph on which the adaptation was based, the gallery has no action against you for copyright infringement. It may have an action against you in contract based on the terms of the licence that you purchased in the image in order to print it inside the book.

Regardless of who owns the copyright (if any) in the photograph, the photographer has some moral rights in the photograph. These may be breached by the adaptation but they are not the rights of the gallery. They are personal to the creator of the work (in this case the photographer). It could be argued that the intent of the photographer was to create an accurate reproduction of the sketch and, therefore any moral rights in the photograph are extremely thin. Moral rights are pretty new in the UK so I don't have much of a feel for how this would play in the courts but I suspect that English judges are likely to restrict moral rights much more than their European counterparts and strictly apply the statute in favour of the defendant.

I believe this to be the state of play if the adaptation and publication of the book is in the UK. If the adaptation or publication takes place in the US, then UK law is mostly irrelevant other than as to whether copyright subsists at all. I'm sure others on the list can comment on the situation under US law.
Regards,
Tim Received on Wed Jun 08 2005 - 23:30:45 GMT