Re: Fine Art Reproductions

The crux of this debate is answering the question:

  "Is a photograph of a painting a reproduction or a derivative work?"

The debate has strayed at various times into considering whether sweat of the brow or some modicum of originality is involved in creating photographs of paintings (and other visual art) intended to be a faithful representation of that original work.

Given that English law leans much more towards sweat of the brow than US, it strikes me as amusing that the English position has been settled for well over 100 years in favour of reproduction. In considering whether photography was an infringement the court held that "reproduction by photography or by any process, mechanical or otherwise whereby copies might be indefinitely multiplied" is infringement in the copyright of a painting (_Gambart v. Ball_ (1863) 14 GBNS 306, 319 per Byles J as followed in _Graves v. Ashford_ (1867) LR 2 CP 410 per Kelly CB) or a substantial part of an artistic work (_Brooks v. Religious Tract Society_ (1897) 45 WR 476). Note that English law did not and still does not* prevent the creation of adaptations (derivative works) of artistic works.

This case law therefore makes it clear that, at least where making copies of the work is the aim, that we are dealing with reproduction and not something less. In a remarkably timeless choice of words, it also clear that digitization of an artistic work is an infringement under English law.

I would imagine that photographic technology in the 1860's was somewhat less able to produce a true reproduction than modern technology. My knowledge of the history of photography is pretty limited. Was colour photography around at this time?

*When I last checked although it strikes me that this might be a traget for European harmonization. Can anyone confirm that this is still the case?

-- 


| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)

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