Re: Fine Art Reproductions

On 03/27/99, Lesley Riley <lrileyart[_at_]aol.com> wrote:
>
> I make collages. If I use a copy of a work of art in the public
> domain, but from an art book recently published, am I infringing on
> copyright?

Under U.S. law: According to the recent case of Bridgeman Art Library v. Corel Corp., a photograph of a public domain art work cannot be copyrighted (lack of originality), so this would not be an infringement. That doesn't mean that you might not be sued by a purported copyright holder who believes otherwise, but at least you can proceed in good faith.

The more difficult question is in determining whether the work of art is in the public domain in the first place. Prior to January 1, 1978, copyright protection depended on "publication," and it can be difficult to determine exactly when an original work of art was first published. Under the 1976 Act, the public display of an art work is NOT a publication; but prior to that, courts were split on the issue. It is clear that a sale of, or an offer to sell, the original artwork or an authorized reproduction to a member of the general public is a publication. Publication before 1922, or publication without notice before January 1, 1978, placed the work in the public domain (as did, with limited exceptions, publication without notice between January 1, 1978 and March 1, 1989).

> Also... a lot of authors are currently using quotes by "famous" people
> in their books, like at the opening of a chapter or on the side of the
> page. Are these quotes (and any others found in a book of quotes)
> public domain?

It depends on whether the quotes are from a "work of authorship" or are merely from live conversation. The latter are unfixed, and can't be copyrighted (but there MIGHT be an unpreempted state law cause of action in limited circumstances). The former may be protected by the copyright in the work; but the copyright might no longer be in effect, either because of duration or forfeiture; or it might be considered "de minimis" copyring. In either case, I imagine the authors are mostly either getting permission (see the credits page) or relying on fair use.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Mar 29 1999 - 22:11:18 GMT