Well Known images - Copyright law

'Is it legal', 'can I do this' type questions and discussions.
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S1MONS
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Well Known images - Copyright law

Post by S1MONS » Mon Jul 21, 2014 12:53 pm

Dear all,

I have started aa company that amongst other things sells and finds images for use by Interior Designers.

The images are framed prints. Which I obtain via wikipedia / the Yorck project or wherever I might be able to find public domain images.

The consist of artists such as - Wahol, Matisse, Durer, Van Gogh etc and in addition to this various antique graphic arts prints.

It is my intent to download the images, make changes to the colour temperature, contrast, lighting, removing any fuzzy areas etc, and then market and sell the resulting image.

Am I able to do this or do I need to be aware of copyright problems?..

I would be interested in your response?...

Thank you
Finding art for use in publishing, interior design and facilities...www.the-image-resource.com

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AndyJ
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Post by AndyJ » Mon Jul 21, 2014 7:23 pm

Hi S1mons,
The problem with this as a business plan, is that you need to be 100% sure that the works you obtain from wikimedia or the Yorck Project or any other source are confirmed as being in the public domain. This may require a lot of research on your part.
The consequence of failing to do this, and accepting someone else's assurance that a work is in the public domain, could be financially painful.
There are two aspects to what you need to check: that the artist of the original painting died more than 70 years ago* (relatively easy with known artists), and that who ever photographed the painting is not claiming copyright in his photograph.
This second test is far more difficult because different jurisdictions hold slightly different views on the position of such photographs. In the USA the frequently quoted case is called Bridgeman Art Library v Corel Corp, which held that since copying a painting by photographing it adds nothing original, the photograph itself cannot attract copyright which is reserved for original works. However in the UK and Europe the position is somewhat different and a photographer who can show that he/she used skill and judgement in the choice of lighting, colour correction and alignment along with several other factors, may well be entitled to copyright in his/her photograph because these unseen qualities amount originality, or as the Court of Justice of the European Union has found, the work reflects the personality of the photographer. The problem is that there haven't been any recent cases to test this divergence of views.
Wikimedia, being an American company, relies heavily on the Bridgeman case as grounds for claiming most of its artworks are in the public domain. I haven't discovered the Yorck Project's detailed explanation for how it confidently says its catalogue contains PD items. That said I am not aware of anyone having brought a case against Yorck, similar to the one brought by Bridgeman, so maybe they are fully justified in making their claim.
Once you are confident that the work you wish to use is in the public domain, then you making changes in the way you suggest should not cause any copyright issues. However you do need to be aware of the moral rights that artists have for their work not to be treated in a derogatory way (the so-called droit d'intégrité). Once again the effect of this varies by jurisdiction. The US has very weak protection for moral rights; in the UK the moral rights only last as long as the copyright, but in France moral rights exist in perpetuity; Germany also has a strong tradition of protecting the moral rights of authors and artists, but their legal code does include one helpful limitation on authors:
"Article 39 Alteration of Work

(1) The holder of an exploitation right may not alter the work, its title or the designation of author (Article 10(1)), unless otherwise agreed.

(2) Alterations to the work and its title which the author cannot reasonably refuse shall be permissible.
So unless the artist was French, you probably won't have much problem with the subject, and you are not too extreme in the changes you make, which might affect the posthumous honour of the artist!

* If the 'Wahol' you mention in your posting is Andy Warhol, then of course he has only been dead for a mere 27 years so his work is still in copyright.
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

S1MONS
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Post by S1MONS » Mon Jul 21, 2014 7:53 pm

Thank you so much for your reply,... It might take me a while to one clarify everything you are saying and two to put it into place,... But thanks I will wait and act accordion gong to what you have said.

Thank you once again....
Finding art for use in publishing, interior design and facilities...www.the-image-resource.com

bakuman
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Post by bakuman » Thu Jul 24, 2014 1:40 pm

* If the 'Wahol' you mention in your posting is Andy Warhol, then of course he has only been dead for a mere 27 years so his work is still in copyright.
True. One wrinkle I've seen is to copy his screenprint technique only with images that were not created by him. It consists of repeating the same image, say in a 2x2 or 3x2 format, but with each image in a different color. Google "Marilyn Diptych" for an example.

I wonder if it's legal to sell these?

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AndyJ
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Post by AndyJ » Thu Jul 24, 2014 2:35 pm

Hi bakuman,
If this was done in the USA, then I think the answer to your question would be yes. That's because US copyright law includes an exception known as fair use. The fair use doctrine is broader and more adaptable than the UK exception of fair dealing.
Fair use includes the concept of transformative use, which along with some other factors which a court will need to evaluate, provides scope for an adaptation of a work to take the new work into either a different area or genre, or to a level of artistic merit equal to or exceeding the original. A good example of this doctrine at work can be seen in the case known as Cariou v Prince
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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