You are right to be cautious about the copyright status of digital reproductions of artworks which are themselves out of copyright. And you also need to treat Wikimedia commons statements with similar caution. Wikipedia base their copyright assessments on US copyright law which, generally speaking, does not grant copyright to 'mechanical' copies: the often-quoted case is Bridgeman Art Library v Corel Corp
in which it was said that the photographer had added nothing original to the artwork, so had not created a 'new' work.
In theory the same reasoning should apply in the UK, but at present it doesn't. Here, the courts have decided that if the photographer uses sufficient skill in making choices about the use of lighting, and other technical issues such as correctly reproducing the colour of the painting, then this may amount to 'originality'. In Germany or France, it is most likely that they would take the same view as in the USA.
The main problem here in the UK is that the law has not been tested (recently) on this specific subject. The nearest we have to caselaw is AntiquesPortfolio v Rodney Fitch
in 2001. which was about photographs of antique furniture where the choices, in terms of positioning, angle, lighting, focus and so on were seen as due to the skill and effort of the photographer. But that is quite an old judgment and today the test is whether the new work represents the spirit or individual creativity of the person who makes it (this is based on the concept of l'oeuvre de l'esprit
which is applied in France and Germany). There might have been an opportunity to resolve the matter one way or the other when in 2009 the National Portrait Gallery threatened to sue an editor working on behalf of Wikipedia (NPG v Wikipedia Foundation
) but the matter was settled without going to court, so we are no closer to a resolution of this issue.
Naturally, museums and art galleries will put copyright notices on the postcards and posters which they sell, or on images in catalogues or on the internet because there is nothing legally to stop them, and it is a way of protecting their income stream. And as noted above, so far no one has called their bluff by taking the matter to court.
And there is one other factor which may come into play. Under EU law there is something called Publication Right
. This operates a little like copyright, when someone first legally publishes a previously unpublished work. It lasts for 25 years from the date of publication. Obviously where the work of art had been on show in a public gallery or museum then this publication right won't apply, but previously undiscovered works or works which had remained in private ownership prior to publication of a photographic reproduction, might well qualify.
For more on this topic, see barrister Francis Davey's analysis of the law at the time of the threatened action against Wikpedia: here
. Note that his post was written before a significant judgment of the Court of Justice of the European Union in a case known as Infopaq
, where the oeuvre de l'esprit
doctrine gained ascendency.