On 5/28/97, Robert Honan <robertus[_at_]harbornet.com> wrote:
>
> Robert Panzer <bigbusie[_at_]aol.com> wrote:
> >
> > I would like to hear people's opinions on whether a photograph (or
> > transparency) taken straight-on of a two dimensional work of art
> > (i.e., drawing or painting) is protectable by U.S. copyright. This
> > would be regardless of whether the underlying work of art is protected
> > by copyright. Does anyone know of any case law which directly deals
> > with this issue?
>
> Assuming that the photograph contained at least some originality,
> yes it would be copyrightable. The next question would be if the work
> photographed was copyrighted, was the photograph made with the consent
> of the photograph's copyright holder. If the photo is necessarily
> original it would still be a derivative work, if it did not contain
> enough original content it would merely be a copy. Both derivative
> works and copies require consent of the copyright holder, unless they
> qualify as a fair use.
The first sentence in Robert Honan's reply is the easy answer. The question that remains is how can one determine what is "original" in a reproductive photograph of a two-dimensional object. Surely the photograph will be different from the original object in the ways photographs are never the same as their subjects. Some of these differences can be attributed to the limitations of the media, while others can be attributed to conscious (or unconscious) decisions made by the photographer. The limitations of the photographic technology cannot be said to produce originality, one would think; but, reductions have an aesthetic of their own. These elements and those which have been added to the original make up what has previously been called in this forum "a thin copyright."
Yet, are there reproductive photographs in which the originality in the photograph is so minimal that its copyright is out of the question? Are there photographs in which originality is so obvious that copyright is clearly warranted? To answer these questions we must understand what "originality" is, and that is an issue for students of aesthetics. To codify a definition of "originality" for the service of commerce may, in the end, do more harm than good, for the answers will always be and should be culturally and historically determined.
What about the intent of the photograph? Is the originality of reproductive photographs assumed to be minimal simply because the intent of the photographer is to be as minimally original and as objectively faithful as possible? Or is "intent" to be understood as independent from the result. After all, the intent may have been to be faithful, but the photograph certainly will encode many differences.
These questions are being asked with ever greater urgency these days, as scholars and other users are trying to claim that photographs made after public domain works of art are themselves uncopyrightable, and museums and others, who seek a lively business in licensing the use of such photographs, claim copyright in photos of works in the public domain. Culture, after all, is a commodity today.
To my mind, the important question is the following: When it comes to singular unique works of art that are no longer protected by copyright, how are the demands of the public domain made manifest? If museums and object owners can copyright their reproductive photographs and restrict access to the objects by those who wish to take their own photographs of objects (as is their prerogative), is there any right that the public may exercise to use images of such works?
Literary works in the public domain are always accessible for further use, but art objects, by virtue of their singularity, challenge our idea of copyright as a protection with defined limits.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:25 GMT