Re: Fine Art Reproductions

On 04/06/99, Robin M. Eichel <baliny[_at_]aol.com> wrote:
>
> On Mon, 05 Apr 1999, Robert Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > Whereas it is possible to reproduce a "text" exactly, it is impossible
> > to create an exact simulacrum of a visual work of art. There will
> > always be a difference between the original and the copy. The relevant
> > question is this: Are these differences purposeful and representative
> > of some original view of the copyist, or are they due to inherent
> > limitations, faults and/or imperfections in the reproductive process?
> > If these differences are due the former, then, I'd say that the copy
> > is copyrightable, if the latter, then there is no originality.
> >
> > But the answer will always be a judgement call. When a photographer
> > takes as his subject architecture or sculpture, it is clear that he must
> > interpret his subject. When a photographer in a studio takes as his
> > subject a two-dimensional image -- a painting, for example -- his
> > opportunity to be creative is circumscribed by the conventions of the
> > photographic studio. Yet, there are many interpretive choices to be
> > made in such "objective" photographic sessions. These include choice of
> > film, type and strength of lighting, position of lights, filtration and
> > color balance, contrast, etc. Clearly, the results of one photographer
> > will differ from the results of another -- given the same subject.
> >
> > Are these differing results the consequence of different "world views,"
> > indicative of different stylistic predilections? They may be. But do we
> > judge the imposed differences as creative additions and interpretations,
> > or do we see the differences as a kind of technical failure?
> >
> > The Bridgeman decisions, I think, assume rightly that the differences
> > between original and photographic reproduction, are inherent to the
> > process, and are not conscious or purposeful efforts to reinterpret
> > and to add something new to the objects before the camera.
> >
> > I think that we are correct in calling these copies "non-originals,"
> > even while we reserve the possibility at some future date to say
> > something like: "Aha, these copies are clearly representative of
> > post-modern reproductive styles and techniques, and are undisputable
> > evidence of the need for the late 20th century art public to
> > de-contextualize the work of art from its moment of creation, from
> > its history of placement and from its tactile tangibility, yatta,
> > yatta, yatta."
>
> I speak not only as the Rights Manager of the Bridgeman Art Library/NY
> but also as a trained photographer. Your comments regarding the lack
> of purposefulness in the choices of film, lighting, etc. regarding
> the taking of a photograph indicate that you haven't ever attempted
> to photograph seriously. To illustrate:
>
> Using your point and shoot camera, take a snapshot of a family member
> with Kodak color film then again with Fuji color film. You'll see the
> difference (and get copyright, for that matter).
>
> To say that such decisions are "inherent to the process" likens - and
> reduces - photography to the status as of a photocopy machine. A
> photographer does not just "point and shoot."

I think you misunderstood Robert Baron's previous post. No one (and certainly not Robert) is claiming that a photographer just "points and shoots." No one is denying that it takes skill and judgment to reproduce a painting in a photograph; and no one is denying that the choices made in doing so are "purposeful."

The question is, for WHAT purpose are these choices being made? What Robert said was that the choices made by the photographer "are not conscious or purposeful efforts TO REINTERPRET AND TO ADD SOMETHING NEW to the objects before the camera." He didn't say they weren't purposeful choices; he said that the purpose behind them was to reproduce the original as faithfully as possible, rather than to transform the original into a different work.

To quote Feist: "This decision should not be construed as demeaning [the photographer's] efforts ... but rather as making clear that copyright rewards originality, not effort."

In the absence of public access to the original painting for the purpose of photographing or reproducing it, any other decision would make the "public domain" status of the original painting meaningless.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 07 1999 - 19:29:10 GMT