Commons:Reuse of PD-Art photographs

Shortcut
COM:PDARTREUSE

This page discusses legal issues but it does not constitute legal advice. Please see the General disclaimer.

Commons policy on the hosting of photographs that are faithful reproductions of two-dimensional works of art that are in the public domain can be found at Commons:When to use the PD-Art tag. Although such images are allowed here, there may be local laws that prevent or restrict the reuse of such images in your country. Some examples are listed below, but as always it is your responsibility to ensure that you obtain any necessary local legal advice before reusing content.

Note that this page discusses re-use of Commons images in different jurisdictions. It does not address whether an image is allowed to be hosted here in the first place.

The U.S. case of Bridgeman v. Corel (1999)

In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented. While the New York District Court does not hold jurisdiction over the whole US, other district courts have generally relied on and expanded on this decision.

The rule therefore excludes from copyright protection photographs which are intended to be no more than a faithful reproduction of a two-dimensional work of art such as a painting. If only technical expertise is involved (to take a faithful and unimaginative picture), the photograph acquires no copyright protection in its own right. The case extends the rule that scans and photocopies of two-dimensional originals are not copyrightable to cover in addition faithful reproductions created in the U.S. through photography.

As a result of this case, anyone taking in the U.S. a mere 'record' photograph of a 2D work of art—plain, full-framed—gets no copyright protection for the photograph. If the original work of art is sufficiently old that its own copyright has expired, the photograph itself will then be free for use in the U.S.

Different countries apply the rules on originality in different ways, and identical images may be treated differently in different jurisdictions. In some countries (such as the UK) faithful reproduction images may be considered sufficiently original to attract copyright protection; in others (such as the Nordic countries) there may be neighbouring rights that apply.

Neighbouring rights ("simple photographs")

In certain countries, any photograph, whether original or not, is covered by a so-called "simple photograph" neighbouring right that amounts to a copyright with a reduced term of protection. If the photo is sufficiently original, the author can additionally be granted normal copyright protection. In the Nordic countries, for example, the right applies to all photographs, including "faithful reproduction" images. However, protection does not normally apply to scans or other photomechanical reproductions — this special neighbouring right applies only to photographs. See Commons:Simple photographs.

Country-specific rules

Australia

/ Inconclusive. Court cases in Australia have gone both ways. See Telstra v Desktop Marketing Systems.

Belgium

/ Inconclusive. In the Belgian law "Wet betreffende het auteursrecht en de naburige rechten." of 30 June 1994, in chapter 1, part 1, article 2, paragraph 5 one finds:

De beschermingstermijn van foto's die oorspronkelijk zijn, in de zin dat zij een eigen intellectuele schepping van de auteur zijn, wordt (vastgesteld) overeenkomstig de voorgaande paragrafen.. [1]

(translation): The protection duration of photographs that are original, in the sense that they are a proper intellectual creation of the author, becomes like previous paragraphs. (and thus copyrighted till 70 years after the death of the author)

The Belgian federal government clarifies this on one of its websites:

Worden daarentegen niet beschermd door het auteursrecht: wat uitsluitend door een machine wordt voortgebracht (satellietbeelden).[2].

(translation): Are not protected by copyright: what is made solely by a machine (e.g. satellite images).

Simple scans or photographs of public domain documents remain hence in the public domain.

Brazil

Generally OK. Article 46 of Law 9610 states that the depiction of works of art in a "new work" is not an infringement of copyright, as long as the mere depiction is not the primary objective of the new work. Other restrictions apply.

Canada

/ Inconclusive. Court cases in Canada regarding "sweat of the brow" have gone both ways.

France

/ Inconclusive. Court cases in France have gone both ways. See fr:Utilisateur:Jastrow/PD-art (in French).

Germany

OK Reproduction photography is not protected by copyright in Germany, but there have been discussions whether the lesser protection of a Lichtbild according to §72 UrhG applies. The highest federal court consistently decides that even a Lichtbild demands a "minimum of intellectual merit" (BGH, 8. November 1989, GRUR 1990, 669ff. – "Bibelreproduktion"), so David Seiler, lawyer and influential author on copyright of photography in Germany, concludes: "... the prevailing opinion assumes that reproduction photography is neither protected by copyright nor enjoys protection as Lichtbild." (David Seiler, JurPC Web-Dok. 251/2004, para 13)

Italy

OK before 1993 /  Not OK otherwise. Reproduction photography is protected by copyright in Italy, but this right subsists until 20 years have elapsed from the year in which the picture was produced. Article 87, Chapter V, Rights relating to photographs: «[... ] reproductions of works of graphic art [...] shall be considered to be photographs for the purposes of the application of the provisions of this Chapter.» Article 92, Chapter V: «The exclusive right in respect of photographs shall continue for twenty years from the making of the photograph.»

Japan

OK The Agency for Cultural Affairs states photographic reproductions are not copyrightable, [3] though there have been no court decisions. As a similar case, The Intellectual Property High Court ruled that a hand-drawn copy of an old line drawing with minor modifications could not attract copyright as a derivative work because of lack of creativity. [4] And The Supreme Court did not admit owner to exercise of Copyright. [5]ja:顔真卿自書建中告身帖事件

Macao

OK Paragraph 4 of Article 1 of Decree-Law n.o 43/99/M: "A work is original where it is the result of the author’s own creative effort and not merely the appropriation of another person’s creation." [6]

Netherlands

/ Inconclusive. In the Netherlands, the Van Dale/Romme-arrest, a decision of the Supreme Court of the Netherlands about a database, states that a work must possess two characteristics in order to be copyrightable:

1. een eigen oorspronkelijk karakter (its own original character)
2. met een persoonlijk stempel van de maker (and a maker's mark)

This ruling is considered to be applicable to other 'works' (as defined in the Auteurswet 1912) as well. However, it is unclear where to draw any line with regards to these two points, so it remains to be decided on a per-case basis if a photograph of an old painting can be copyrighted or not. Generally, exact and technically perfect photographs of two-dimensional objects in the public domain are not considered copyrightable, since the aim of making an exact reproduction rules out any originality on the part of the maker (see also the explanation on [7])

Nordic countries

This public domain Icelandic artwork was scanned from a book published in 1950. Any exclusive rights of photographic pictures involved in producing the book have expired by now.

Generally  Not OK. In Denmark (Article 70), Finland (Article 49 a), Norway (Article 43 a), Sweden (Article 49 a), and Iceland (§49), anyone who has produced a photographic picture has an exclusive right to reproduce the picture and to make it available to the public. This right subsists until 50 years have elapsed from the year in which the picture was produced (15 years after the death of the photographer but at least 50 years in Norway).

Photographic reproductions from these countries enter the public domain when both the copyrights on the original and this neighboring right on the photograph have expired. Recent photos are thus never OK, but older ones may be (if the original is in the public domain). These countries had until the 1990s shorter terms for this photography right.

• Iceland: OK before January 1, 1963. Iceland has a term of 50 years since creation.
• Norway: OK before January 1, 1970 if the photographer died before January 1, 1980 Norway had a term of 25 years since creation (but at least 15 years after the death of the photographer) until 1995. If the photographer died later or the picture was taken later, the current terms apply.[8]
• Sweden: OK before January 1, 1969. Sweden had a term of 25 years until 1994.
• Finland: OK if created before January 1, 1963 or published before January 1, 1966. Finland had a term of 25 years since the year of first publication until 1991.
• Denmark: OK before January 1, 1970. Denmark had a term of 25 years until 1995. (§91, 5 in the current law).[9]

However, mechanical reproduction such as photocopying and scanning are not mentioned in the laws, and are probably OK. Similarly, reprints using old etchings and copper-plates are likely not protected.

Poland

OK Faithful reproductions of two-dimensional works of art are not eligible for copyright themselves under Polish law, because they are not considered as individual creative activity.

Court rulings:

• Sąd Apelacyjny w Warszawie, orzeczenie z 5 lipca 1995 (I ACr 453/95)
• Sąd Najwyższy — Izba Administracyjna, Pracy i Ubezpieczeń Społecznych, orzeczenie z 26 czerwca 1998 (IPKN 196/98)

Romania

OK Copyright is granted only to "any changes to an artistic work which require creative intellectual work", while "non-essential changes, additions, cuttings or adaptations, as well as the correction of a work or a collection do not extend their copyright term". "Legea nr 8/1996 privind dreptul de autor şi drepturile conexe" Bogdan (talk) 14:03, 3 August 2008 (UTC)

Spain

OK before 1988 /  Not OK otherwise. The Ley de Propiedad Intelectual (LPI 1996) [10] (1987) provides 25 years of copyright to "mere photographs" or similar reproductions, beginning on 1 January of the year following creation.

TITULO V: La protección de las meras fotografías.

Artículo 128. De las meras fotografías.

Quien realice una fotografía u otra reproducción obtenida por procedimiento análogo a aquélla, cuando ni una ni otra tengan el carácter de obras protegidas en el Libro I, goza del derecho exclusivo de autorizar su reproducción, distribución y comunicación pública, en los mismos términos reconocidos en la presente Ley a los autores de obras fotográficas.

Este derecho tendrá una duración de veinticinco años computados desde el día 1 de enero del año siguiente a la fecha de realización de la fotografía o reproducción.

Switzerland

OK In Switzerland, photographs must exhibit an "individual expression of thought" to be subject to copyright. According to applicable Supreme Court case law (Blau Guggenheim v. British Broadcasting Corporation BBC, BGE 130 (2004) III S. 714-720) this requires that the photograph is given an individual character e.g. by the choice of framing, the use of camera settings or the editing of the image. This means that faithful reproduction photographs are not subject to copyright in Switzerland. The State Library of Lucerne also opines in that sense, saying that photographic reproductions of documents from libraries were not "works" in the sense of the copyright law and thus not copyrighted.[11] See also Swiss copyright law.

Taiwan

Sometimes  Not OK in Taiwan, Republic of China:

Copyright restriction

Article 79 of the Copyright Act: "For a literary or artistic work that has no economic rights or for which the economic rights have been extinguished, a plate maker who arranges and prints the said literary work, or in the case of an artistic work, a plate maker who photocopies, prints, or uses a similar method of reproduction and first publishes such reproduction based on such original artistic work, and duly records it in accordance with this Act, shall have the exclusive right to photocopy, print, or use similar methods of reproduction based on the plate."

Getting this exclusive plate right requires official registration. Once registered, the plate right is good for ten (10) years from the time the plate is completed, to expire at year end.

Non-copyright restriction

Cultural Heritage Preservation Act: Item 1 of Article 69: "For the purpose of research and promotion, public antiquities preservation agency (institution) may reproduce and supervise the reproduction of the Antiquities under its custody. Third parties may not make any such reproduction except with the permission and under the supervision of the original custodian preservation agency (institution)."

Item 2 of Article 69: "The rules governing the reproduction and supervision of Antiquities referred to in the preceding paragraph shall be prescribed by the central competent authority."

Item 1 of paragraph 1 of Article 97 provides the administrative fine of 100,000 to 500,000 new Taiwan dollars for "reproducing publicly owned Antiquities without permission from, or supervision of, the original custodian preservation agency (institution) in violation of item 1 of Article 69."

United Kingdom / UK

 Not OK. Most British academics and practitioners agree that the UK courts would uphold copyright protection on a carefully lit and exposed photograph, taken from a distance, which aims to be a faithful reproduction of a 2D work of art. The level of originality required by the UK courts is low, and there is likely to be sufficient originality in the photographer's selection of lighting arrangements, exposure, filters and so on for a new copyright to be generated. Here is what the principal copyright practitioner's text, Copinger & Skone James, has to say:

In terms of what is original for the purpose of determining whether copyright subsists in a photograph, the requirement of originality is low and may be satisfied by little more than the opportunistic pointing of the camera and the pressing of the shutter button. There seems to be no reason of principle why there should be any distinction between the photograph which is the result of such a process and a photograph which is intended to reproduce a work of art, such as a painting or another photograph.

Of course, a raw unenhanced scan or photocopy of a PD illustration in an old book is OK, as purely mechanical copying cannot even in the UK create a new copyright.

See Commons talk:When to use the PD-Art tag/Archive 1#Reply to call for revision for a much more detailed review of the UK caselaw and legal opinions.

United States / USA

OK Under the rule in Bridgeman Art Library v. Corel Corporation, a mere 'record' photograph of a 2D work of art (i.e. a photograph which is an as-accurate-as-possible copy of the original) acquires no copyright protection.

See also

• Category:PD-Art license tags