Image use query

'Is it legal', 'can I do this' type questions and discussions.
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Image use query

Post by Stevenchesters »

Hi Andy,

I was wondering what your thoughts are on using this image to print some posters for re-sale from : ... lang=en-gb

It states on commons that the image is copyright free due to the obvious length of time the artist has been dead, but when reading into the depths of wikimedia legal statements it points out that the images remain the property of the respective museums which supplied the images.

So does this mean I'd be able to use the image for reproduction purposes and that the actual digital file itself can't be reproduced and sold, or am I unable to use the file for any commercial task?

Thanks again for your invaluable help.

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Post by AndyJ »

Hi Steve,
You may need to do a bit more research on some of the other digital images of this Van Gogh to see if any of them have a clearer copyright status.
The problem here is that in Wikipedia (and many others) rely on a decision of the Court of the Southern District of New York called Bridgeman Art Library v Corel Corp which concluded that photographs of 2 dimensional works of art (ie paintings) were not entitled to a separate copyright because they lacked originality. In other words, the court found that the photographer added nothing new by reproducing the artwork.
This is by no means settled law in the US because each of the judicial Districts (there are a total of 94 such courts in mainland US and its territories) is not bound to abide by decisions of other federal district courts.
And it is not a decision which is universally reflected elsewhere in the world, especially in the UK, where if the photographer can show he has used skill and judgement in the way he photographed the work, he will be entitled to a new copyright in his photograph (for instance as found in this case). France and Germany have different standards for assessing this subject. But as all three countries are within the EU, they are bound to follow the EU Directive which say that to be eligible for copyright a work must be "the author’s own intellectual creation". Unfortunately the Court of Justice of European Union (CJEU) has yet to hear a case involving these exact details, although decisions such as Painer and Infopaq have clarified some aspects.
All of which means it's a messy issue when looked at from a transnational perspective.
The image which comes up when someone clicks on Wikimedia link you provided is one produced by Google under its program run in conjunction with various museums, in this case the MOMA. However since Google are less than clear about the exact copyright status of their digital reproduction, it might be worth contacting MOMA for their view. But as there are other versions available, maybe one of those will have a clearer statement as to whether the photographer concerned is not claiming copyright in his work.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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