Re: Fine Art Reproductions

On 4/9/99, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> My $.02: A faithful reproduction is not original. Period. Ever. The
> limits and requirements of the medium in which the reproduction takes
> place does not change this. If one only has b&w film (or cannot afford
> to print a catalog in color), the fact that one uses b&w film for the
> reproduction does not change the unoriginal reproduction into a new
> creative or original work. Same is true for lithography, color
> photography, videography, digitizing, etc.
>
> Can an original work be authored by changing medium from, say, oil paint
> to silk screen reproductions? Surely. And the same could be true for a
> photograph of a painting - or a series of photographs, or mdofications
> to photographs. The endless reworkings of Marilyn Monroe photos is a
> case in point, I think.
>
> It is impossible to capture all of the color, intensity, detail of a
> painting with even the finest color camera and film. In the first
> place, you do not normally have a one-to-one correspondence of film
> "pixels" to picture pixels. Even if you do have such a large piece of
> film, no color film made today captures all of the colors available to
> an oil painter (let alone to nature). But these limits to technology do
> not suddenly make the most faithful reproduction a copyrightable work.
>
> If one were doing a series of photographs to show the limits of the
> technology, to show the variability of cameras and films and lights and
> the like, then that might be an original work - because the aim is not
> purely faithful reproduction, but rather the aim is creation of an
> original work for some other purpose. But it could be the case that
> none of the reproductions standing alone is copyrightable although the
> set as a set could be - like the example someone else gave of famous
> phototgrapher's photographs of a work of art.
>
> Like pretty much everything else in copyright law, the lines are not
> clear and the distinctions are not always fully defensible on the basis
> or strict logic or analogy. But there is a difference between a mere
> change of medium and an original work which adds value. Not all works
> derived from another work are themselves original. Some are just plain
> copies.

and John Noble <jnoble[_at_]dgsys.com> wrote:
>
> It's possible that you are right, but this drives copyrightability
> analysis into unexplored territory. Can the originality requirement
> turn on the subjective intention of the author, ie. whether the
> difference from the original is purposeful or inadvertant; or a
> subjective assessment of the result, ie whether the difference is
> meaningful or meaningless, feature or flaw? Does this mean that my own
> badly framed, badly lit, poorly focused Kodak instamatic shot of the
> Mona Lisa is not protectible only because I _wanted_ a faithful
> reproduction?

and John Noble also wrote:
>
> I'm sympathetic to your argument, but if I used two different color
> copiers to reproduce a Van Gogh, I suspect I would also see a
> difference. Why isn't that copyrightable. If the choice of Kodak vs.
> Fuji injects sufficient originality to merit copyright protection, why
> not the choice between Xerox and Canon. And if that's the case, is
> it ever possible to draw a principled distinction between a "slavish
> reproduction" and an "original rendering" of a work of art. Seems
> to me that every reproduction departs in some particular from the
> original -- is there a legal significance in inadvertant vs.
> intentional originality.

I think Prof. Jamar has it right; Noble expresses concern about intent, but I think that "originality" implies intent. Also, let's not forget that copyright protects "works of _authorship_" (emphasis added). There may not be a bright line rule--although this is common in other areas of the law and life in general--yet purely mechanical or electronic reproduction does not merit copyright protection, or if it does, then the level of protection isn't very high (a so-called "thin" copyright) anyway, because the copyright would only protect the additional amount of creativity (negligible) used in preparing what is a derivative work anyway.

To take the Van Gogh photocopier example, _if_ there's any copyrightable contribution entailed in selecting the settings and the brand and model of copier, the underlying work is still the painting. The choice of film may not inject much, if any, originality sufficient to warrant copyright protection. Copyright does not protect short phrases; that is one example of no copyrightability attaching to something which is de minimus. Making faithful reproductions can be viewed the same way.

M.

S. Martin Keleti
<keleti[_at_]manifesto.com> Received on Fri Apr 09 1999 - 18:17:07 GMT