On 7/7/99, Robert Panzer <bigbusie[_at_]aol.com> wrote:
>
> On 99-07-03, Bob Stock <bstock[_at_]mindspring.com> wrote:
> >
> > The court found that a photograph shot
> > by a photographer whose goal was to copy a painting as faithfully as
> > possible is insufficiently original to be copyrightable:
> >
> > "[A] photograph which is no more than a copy of the work of another
> > as exact as science and technology permit lacks originality."
>
> Perhaps I am not understanding Bob Stock's response to my original
> post; it seems like he is saying the same thing I am -- but in a
> different way? Unless he is saying that the intent of the
> photographer is the issue. That if the photographer does not intend
> for the photo to be a faithful reproduction then a new copyright
> exists. Hence, unless a photo is made for the purpose of further
> reproduction in say, a book on art, then a photographer could always
> claim that the indent was not a faithful copy. But isn't the bottom
> line what the photo looks like? I would think intent is ultimately
> irrelevant. If the average person on the street says the photo looks
> exactly like the painting except that its a photo version not the
> original, then I think that would indicate non-copyrightability.
> Even with Bob Stock's post, doesn't my original post still stand,
> that the issue is what is considered orginality, not whether the
> photo is taken of a pd work or a copyrightable work.
There was a certain amount of discussion about intent when Bridgeman was first discussed on this list. You could argue that intent is irrelevant. Certainly, intent isn't written into the statute. But you could also argue that the photographs speak for themselves, and that not only weren't they intended to be "original," but, in fact, they are not. Any atom of "originality" is accidental.
And with respect to your last sentence, I agree with you that at an abstract level it doesn't matter whether the photograph is of a copyrighted or a public domain work for determining whether the photograph is sufficiently original to be copyrightable. But on a practical level if the photograph is of a copyrighted work, then it is infringing, whether the photo is original or not.
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