Re: Public Domain?

On 04/27/98, Matt Harshman <mharshma[_at_]adobe.com> wrote:
>
> Would photographs (taken with permission) of ancient Greek sculpture
> in a museum fall under public domain, or does the museum somehow hold
> copyright over these pieces in their trust? This is assuming there are
> no interior shots of the museum that are recognizable.
>
> How about Photographs taken without formal permission?

It is unclear whether your are asking about photographs taken by a member of the public, or photographs taken by the museum. It is also unclear whether you are asking whether taking the photograph infringes a copyright, or whether someone can claim a copyright in the resulting photograph.

For photos taken by the public: There is no copyright in the sculpture, because it is too old. The museum may as a practical matter be able to restrict the taking of photographs (because they don't have to let you in the museum or let you carry a camera), but if they give you permission to take photos and do not place any conditions on that permission, then no further permission is needed. You can take a photo, and as soon as you do so, you have a copyright in that photograph. The sculpture itself is not copyrighted, but you have a copyright in your original photograph of the sculpture. [See below for a discussion of originality.] You could not prevent someone else from copying the sculpture (even from your photo), but you could prevent someone else from copying your photo of the sculpture.

The same would be true if you took the photo without express permission, but the museum did not place any restriction on the taking of photos. In that [unlikely] case, you probably have implied permission to take the photograph.

If taken without permission, the situation is less clear. The museum probably places restrictions on the taking of photos. If you violate that restriction, a court might hold that you are not entitled to claim a copyright in the resulting work (or worse, that the museum could claim the copyright). The more likely result is that you would be permitted to claim copyright in the photo even though it was taken without permission, but it's far from certain. There was an extensive discussion on the list about this a few weeks ago; check the archives for "R.M.S. Titanic" and subsequent messages. [Contact the list manager at listmgr[_at_]cni.org for information on how to access the archives.]

If the museum takes the photograph: The museum can claim copyright in the resulting photograph, even though the sculpture itself is not copyrighted. Although it is unclear whether a photograph of a two-dimensional work is entitled to copyright [see the extensive discussion of this issue in the list archives under the heading "Images of Public Domain Images"], there was general agreement that a photograph of a three-dimensional work was entitled to copyright even though the sculpture depicted was in the public domain. Enough originality has been added in terms of vantage, lighting, composition to make the resulting photograph copyrightable.

Obviously, if the museum takes the photos no issue of permission arises.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Thu Apr 30 1998 - 01:06:47 GMT