Re: Fine Art Reproductions

On 4/21/99, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
>
> 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?

Mr. Tim Arnold-Moore misses the point. Of course a photograph of a work under copyright is an infringement of the copyrighted work. The question under discussion is whether a photograph of a painting in the public domain is separately copyrightable.

R.Baron
rabaron[_at_]pipeline.com Received on Wed Apr 21 1999 - 12:12:27 GMT