Re: Fine Art Reproductions

On 04/20/99, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
>
> Note that English law did not *and still does not* prevent the
> creation of adaptations (derivative works) of artistic works.

Is that true? Does that mean that someone in the U.K. can make a movie adadptation of a book without the author's (or copyright holder's) permission? I have a hard time believing that, so perhaps I did not understand you correctly.

> 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.

That is an interesting perspective from the British point of view, under which (if I understand you correctly), there is no right to prepare derivative works.

Viewed from a U.S. perspective, a copyright includes BOTH the right to reproduce AND the right to prepare derivative works, and courts rarely bother to carefully separate the two. A derivative work is separately copyrightable ONLY if it is original. It is possible to have a derivative work (a work derived from another work) that is not original, and therefore not copyrightable. From the U.S. point of view, therefore, asking whether the photo is "original" is the proper question, rather than asking whether it is a derivative work.

Thanks for your perspective. Unfortunately, most Americans need to be reminded again and again that there ARE other countries out there...

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 21 1999 - 21:20:31 GMT