Copyright issue

Same work, different medium(s)

[Tastatura]

Hi all,
I looked through some of the posts (including forum library ones as well) however I can’t find an answer (or I just might be confused). If this question has already been answered, please point me in the right direction.

What are copyright consequences (if any) for the following situation (note I am just making up an examples):
-say there is a picture painted before 1900s
-someone takes a photograph of it, and makes a printed picture (no artistic stuff just pure picture)
-I acquire the picture, scan it, and convert it into digital format (again without any modifications to the artistic part of the picture)

A you can notice it’s same work just different mediums.
Now I want to publish that digital image on my website.

-Would that violate any copyrights?
-Does it matter if the original painting is in a museum or private collection?
-Is there a difference if I want to charge for image retrieval form my website or not?
-What if I displayed the image free of charge to the visitors (i.e. not making any money on the image itself), but put advertising on the same page – AdSense, banners, etc?

I might talk to copyright attorney, but would like to get an opinion from the board as well. Any info is greatly appreciated.

[stapel]

Tastatura: ...it’s same work just different mediums.

The final product may then be viewed as a "derivative work", and copyright considerations may come into play. The original image, being very old, may not be under copyright; the more recent photograph may be.

Tastatura: I acquire the picture....

Does "acquire" mean "snagged a copy of", "purchased a poster containing", "bought the original and the negatives and the rights to", or something else?

Tastatura: Would that violate any copyrights?

That depends. Who owns the copyright? Does anybody hold a copyright to any image before your digital image? Are you sure?

Tastatura: Does it matter if the original painting is in a museum or private collection?

I don't see how. Where the original painting is hung shouldn't affect copyright considerations related to the photograph of the painting.

Tastatura: Is there a difference if I want to charge for image retrieval form my website or not?

I don't see how. Either it is legal for your to create the derivative work, or it isn't.

Tastatura: I might talk to copyright attorney....

You are raising issues which, if handled incorrectly, could lead to major problems. Definitely talk to an attorney.

Eliz.

[percentages]

>-say there is a picture painted before 1900s

The duration of U.S. copyright protection for works created between 1923 & 1978 is complex. Works published before 1923 are public domain.

See the Eldred vs.. Ashcroft Supreme Court ruling.

You pose many hypotheticals in your post, but, if you are in the US, concerned about the US copyright law, and are dealing with something prior to 1923 then the above might help.

If not, call an Attorney ;)

[Tastatura]

Thanks for the info everyone.

Does "acquire" mean "snagged a copy of", "purchased a poster containing",
"bought the original and the negatives and the rights to", or something else?

There will definitely be NO snagging :) I have a site idea, and am currently exploring
feasibility, hence why I am asking all these questions, however I want to make
sure that everything is on 'up-and-up' on my end.

I know that, for example, universities (at least in US) take a picture of an artwork
(either from original or from the textbook), develop negative into a slide, and then
use that slide in the classroom (for teaching purposes). So the process in on par to
what I am considering, however there might be some legal differences since universities
are educational institutions and I am not…
Any further opinions are welcome

[jomaxx]

In the publishing world, even a photograph of a public domain painting is traditionally considered to be copyrighted (by the photographer). That's the premise that companies like Corbis and Bridgeman Art Library are founded on.

I personally believe this claim to be bogus, that the artistic input involved in making a faithful photograph of a painting does not approach, almost by definition, the level required for copyright protection.

In the old days, when photography was a chemical process and capturing colors and shading accurately required considerable expertise, I can see this idea might have had some merit. But today a digital camera is virtually identical to a scanner or a photocopier, and it's hard to see how simply photocopying a painting grants anyone moral rights over the copy. This is a corruption of the intent of copyright law, and eventually I feel this will be struck down (see Corel vs. Bridgeman Art Library for a relevant although not definitive precedent).

Anyway, just because I believe that to be the case, that doesn't mean that I am correct or that the photographer won't sue you anyways. FWIW, the way things work in reality is that websites usually use such images pretty freely without consequences, although I do know someone who got into trouble over this very matter.

[BigDave]

Funny that you should mention the Bridgeman Art Library, as they were the plantiff in the landmark case (they lost) Bridgeman v. Corel.

Basically the ruling was that even though high quality images might require a high level of skill, it is originality that is required to earn a derivative copyright.

Basically, as it stands now, you are probably in the clear. The problem with Bridgeman v. Corel is that it is not binding precident as it was just a District Court ruling.

To read more (lots more) just do a search on [bridgeman corel]

[teaperson]

however there might be some legal differences since universities are educational institutions and I am not…

Yes, you're onto a whole other layer of copyright law: fair use. There's an established 'fair use' exemption that lets educational institutions use a segment of a copyrighted work. If you're charging, there's no way at all that what you do could be considered fair use.

[jomaxx]

Not necessarily. The commercial/non-commercial nature of the use is ONE of the factors to be considered.

[teaperson]

Good point. But he's still not an educational institution. :)

[Tastatura]

Thanks for all the info.
What if I did not charge for access to the digital image? Does the answ changes if there is AdSense, etc. on the page (I would't think so but...).