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using famous public domain paintings for a product ? Help !

 
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slimbob
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PostPosted: Mon Jan 24, 2011 10:08 am    Post subject: using famous public domain paintings for a product ? Help ! Reply with quote

Hi Everyone

This is my first post and thank god I found your forum, as this problem has really been a thorn in my side.

If anyone is kind enough to give me some advice or point me in the right direction I cannot thank you enough in advance !!!!

With regards my question I have phoned up (IPO) twice to verify and also paid a copyright lawyer on (Just Ask) to answer this question they both said the same thing which was no problem go ahead. However just recently when talking to a person involved in the arts (restoration of digital images) he said the opposite!

Basically really need some clarification here before I go any further with my project.

I am building a prototype product, which is built around or uses famous public domain masterpieces of art. The (IPO) and Lawyer both said as they are in public domain they are copyright free and can be used /amended and sold with no issues.

My arts friend said it is much more complicated than that and you have to buy a license to use them like for example the Mona Lisa, Starry night and any other very famous work.

My own personal thinking on this is if you look on the web you will find thousands of both huge and small businesses selling prints of these works. Have they all paid a license? Plus if you go on ebay, café press you will find Mona Lisa mugs, greeting cards, key rings prints, mouse mats all being sold with no problems? Have all these people paid a license?

If the answer is you should really have one but none does and the chance of getting sued are very remote I will have to take that on board.

If however the answer is you must get a license please could you tell me or direct me where I should go to find out?

Thank you very much for listening to my ramblings it is much appreciated and once again if anyone is kind enough to give me some advice or point me in the right direction I cannot thank you enough in advance !!!!

Best wishes to you
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AndyJ
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PostPosted: Mon Jan 24, 2011 9:45 pm    Post subject: Reply with quote

Hi Slimbob,
I guess what your restorer of digital images may have had in mind was that copyight would probably exist separately in some intervening reproduction or copy of an old master. For instance if you went to the Louvre and photographed the Mona Lisa yourself (assuming that the French allow photography in the Louvre which I very much doubt) you would not be infringing Leonardo's copyright because it didn't exist at the time, and even if he had painted it a couple of centuries later when copyright protection did exist, it would now be free of copyright.
But assuming you don't have the time or the resources to travel round the galleries of the world taking your own pictures, how can you get a copy? The answer is probably one of the many photographs which other people have taken and published over the years. And in most cases these photographs will have copyright attached to them because they are treated by the courts as works in their own right which required the skill and effort of the photographers to produce them. This makes them 'original' which is the term used in the Act. Not original in the sense of being the first, or novel, but as having 'originated' from the skill of a human mind. The law established this precedent more than a century ago in several cases, although it is finding it hard to continue to apply the concept across all areas of copyright in this digital age where copying often requires zero knowledge or skill on the part of the copier.
Anyway, without digressing too far, the problem you face is finding the source material for your project. I would suggest trying to look for photographs (or more likely digital images) which are provably in the public domain, or are released under the Creative Commons licensing regime. I recently found some images of Durer engravings of this type via Wikipedia. http://en.wikipedia.org/wiki/Wikimedia_Commons
There have been a number of frankly artificial methods used to try and prevent the exploitation of certain cultural heritage objects (such as the Eiffel Tower and Stonehenge) by the public, usually dreamed up by museums, galleries and heritage bodies who want to maximise their own money-spinning marketing schemes, which are not at all in the spirit of the intellectual property legislation, but if you can find a reliable source of images which don't require a licence, and that should be possible for most of the iconic art works from previous centuries, then you should be OK.
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slimbob
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PostPosted: Tue Jan 25, 2011 10:58 am    Post subject: Thanks a million Andy ! Reply with quote

Hi Andy

First of all thank you so much for your really lengthy and extremely helpful reply.

What I was thinking of Andy was sourcing digital images of acceptable quality from Wikipedia , Wikipedi commons and The York Project (Public Domain) on Wikipedia and choosing only paintings that Wikipedia make a strong point of saying they are public domain and their copyright has expired .

Next the digital image would be passed to my digital restoration expert friend who will work very hard bringing the images up to a professional restored level using his vast experience in these matters.

The images would then be sold as part of a product built around masterpieces of art.

From your reply Andy my understanding is this is perfectly acceptable and we have nothing to worry about since they are originally source from Wikipedia’s public domain library?

Out of interest Andy would my digital restoration expert friend technically own the copyright of these restored images due to the length of time and his expertise to professionally restore them?

Thank you so much Andy you have no idea how much you have helped me.

I cannot thank you enough

All my best wishes to you.

Rob
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AndyJ
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PostPosted: Tue Jan 25, 2011 2:02 pm    Post subject: Reply with quote

Hi Rob,
In view of your more detailed explanation of how you intend to make this project work, I agree that you are on very safe ground. Just make sure that you obtain and keep any written supporting evidence that each and every work you use is in the public domain. Also if you use Creative Commons material, be sure to abide by the rules of the various licences, which you can find on the Creative Commons site. http://creativecommons.org/
You raise a good point about what, if any, rights your restorer may have in the work he produces. As I mentioned in the previous post, the courts are not entirely settled on the subject. But as a guide, in a recent case Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565* the Appeal Court held that a respected musicologist Dr Lionel Sawkins did own copyright in his transcription of some musical pieces by the 17th century composer Lalande, because he used his considerable academic skill in re-constituting the pieces from various dispersed sources, in bringing the notation up to date and by inserting a previously unscored bass line, without which the music could not have been readily performed by modern musicians. So there are some similarities with the likely work of your restorer. And on the basis of that case, it would seem probable that he could claim copyright in his work. So you would do well to proceed on that basis.
You have two choices. Because you are commissioning him (and I assume paying him for his time) you will have an implicit licence to use his work (irrespective of copyright) in the manner you propose, but ultimately he will own the copyright and you will be a licensee, which could limit your ability to use the restored images in other ways at a later date. If you are happy with this arrangement, then draw up a simple agreement which acknowledges all of these facts and details that your payment is in full and final settlement (perhaps on an image-by-image basis if the work is ongoing), rather than a royalty agreement based on unit sales or some other measure.
Or if you feel that leaving copyright with him is too restrictive, draw up an agreement whereby he assigns his copyright to you as part of the overall deal for which he is paid a fixed amount.
I have mentioned drawing up agreements twice. It would be best if this was done by a lawyer, but also expensive. You can do it yourself, but this might result in unintended omissions/loopholes, or you could take boilerplate agreements and adapt them to suit your needs. You can find a number of suitable templates here: http://www.own-it.org/contracts?page=1
Which ever you choose, make sure you have a written agreement in order to protect your future interests.

*Link to the full judgement : http://www.bailii.org/ew/cases/EWCA/Civ/2005/565.html
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slimbob
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PostPosted: Tue Jan 25, 2011 4:55 pm    Post subject: Thanks again Andy! Reply with quote

Andy I can't thank you enough for all your help and great advice about an agreement between me and my restoration friend.

Plus that link you mention.

I take it the cc (creative commons) logo would appear on the Wikipedia image if it is under the creative commons license ?

Out of interest Andy I see a few images on wikipedia are classed as being in the public domain but are part of direct medias 10,000 public domain paintings from The York Project dvd .It states that the compilation copyright is held by Zenodot Verlagsgesellschaft mbn and licensed under the GNU Free Document license.

I have read a bit abut GNU but it is beyond my level of understand . Am I right in saying that it basically means if you want to reproduce the whole project or compilation then zenot own the copyright and you must ask their permission ?

I only want a few images from their 10,000 compilation does that mean I am o.k as I am not reproducing the whole project/compilation ?

Plus does the GNU Free Document License mean I would be free to use them for my project?

Or am I best staying way from those?

Thanks for clearing that up for me Andy

Thanks so much again

Best wishes

Rob
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AndyJ
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PostPosted: Tue Jan 25, 2011 6:55 pm    Post subject: Reply with quote

Hi Rob,
As you are discovering there's no such thing as a free lunch! But Creative Commons and the GNU free Licence are about as close as it gets to one. They both form part of a large sprawling movement sometimes referred to as Copyleft. In essence their licences retain copyright and the moral right of authors to be credited and not have their work subjected to derogatory treatment, but they license their work without payment for others to freely use (usually either for commercial or non-commercial purposes - although some restrict the license to non-commerical only) as long as you follow their rules. You don't need to obtain the copyright owner's speciific permission if he has said his work is covered by the CC or GNU licence. Here's what the GNU license says on this specific point:
Quote:
2. Verbatim Copying. You may copy and distribute the Document in any medium, either commercially or noncommercially, provided that this License, the copyright notices, and the license notice saying this License applies to the Document are reproduced in all copies, and that you add no other conditions whatsoever to those of this License. You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute. However, you may accept compensation in exchange for copies. If you distribute a large enough number of copies you must also follow the conditions in section 3.

You may also lend copies, under the same conditions stated above, and you may publicly display copies.

In other words whilst you may sell your products bearing the art work on them, you (or your restorer if he is the copyright owner) cannot prevent others from copying your images on the same terms as you have done. This doesn't mean that they can copy the whole of your product if it contains other material - for instance if you wrote a book which included these images, your text would still be protected as your copyright, but the images would not. However, if your produced table mats with works of art on them, it would be hard to prevent someone else producing a product which was virtually identical because the 'essence' of the product would be the artwwork. The base of a table mat would not attract copyright since it would be the product of industrial manufacturing and not substantially different from hundreds of other table mat bases on the market.

Depending on the products you are going to sell, if it is not practicable to display the CC or GNU symbols etc on the product itself through lack of space or some important aesthetic consideration, then the notice can be placed on any attendant packaging if this exists. In the examples given above, a CC or GNU licence could appear on the page after the title page of a book, but would not need to appear on the surface of a table mat for aesthetic reasons, and the cork back might be an impractical location, so a notice on the packaging would suffice.

As you are somewhat dependent on your restorer for this project, it is worth making sure he also understands the implications of using CC or GNU licensed works, although I am sure he will already be familiar with the concept.
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