Paintings' copyright protection

'Is it legal', 'can I do this' type questions and discussions.
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Anna
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Paintings' copyright protection

Post by Anna » Tue Mar 29, 2016 6:00 am

Hi all,
Now I encountered a problem about the accuracy of the information of the paintings in the public domain in Wikimedia Commons. Could you do me a favor to answer it? Thank you in advance.
The author of the paintings died for many years. Some of his paintings are recorded in Wikimedia commons, others are not. The other paintings’ copyright protection period expires, so can they be used freely? The information of the paintings of the author who died several hundred years ago is not in the public domain. And it cannot be searched through the internet. So, can the paintings be used freely? The authors died in the early 20th century. Their paintings’ copyright protection period doesn’t expire for a long time. So, can these paintings be used freely?

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AndyJ
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Post by AndyJ » Tue Mar 29, 2016 6:58 am

Hi Anna,

I am a little confused about the status of the various paintings you have mentioned.

Anything produced by an artist who died more than 70 years ago is almost certainly in the public domain and so can be republished/re-used without any problems.

Technically speaking under UK law if a work had never been published then its copyright term didn't begin until it was/is published with permission, but this causes all sorts of problems as far as paintings are concerned, because hanging a painting in a home or a gallery doesn't constitute 'publication'. And we also get into the unreal world of how can permission be sought from an artist who died perhaps a century and a half ago. And finally, if you know about the painting's existence, that suggests that it has probably been published anyway.

For anything painted within the last 100 years, where you don't know when the artist died, you have to assume the work is still in copyright.

The reason why Wikimedia sometimes comes up with a different assumption about a work's copyright status, is due to the fact that under US copyright law, anything created in the USA before 1923 is held to be in the public domain. Occasionally, Wikimedia interpret this to mean that any work created before 1923, irrespective of its country of origin, is in the public domain, but this is incorrect.

I hope this answers your question
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Anna
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Post by Anna » Thu Mar 31, 2016 2:29 pm

Hi Andy,

Thank you.

I was unclear about the situation of publication after death and worried about using paintings under such protection.

Is there any way to check the information about this kind of paintings?

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AndyJ
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Post by AndyJ » Thu Mar 31, 2016 7:56 pm

Hi Anna,

I'm sorry for confusing you with my remarks about unpublished works. You can safely ignore that for all practical purposes! If you have seen a reproduction of a painting, to all intents and purposes, it has been published.

The situation regarding older works of art is made complicated by the very different approaches to copyright previuosly taken by, broadly speaking, the USA on one side and the European nations (and Commonwealth countries such as Canada and Australia etc) on the other.

Without getting too detailed, the copyright system which applied in the USA prior to 1976 was based on common law which distinguished between the properties rights of a creator of a work which had been published, and the rights after publication had occurred. Under the Federal law the duration of a copyright term was initiated when the work was registered, and then lasted for a fixed period of 28 years and could be renewed up to a total of 56 years. It was not related to the date of death of the artist. This all changed with the 1976 US Copyright Act which brought US copyright in line with European and most other countries' copyright law, where the term of protection derived from the lifetime of the artist plus a fixed number of years (initially 50 years in most countries, but in the EU from 1995, and in the USA from 1998, the additional period has become 70 years). This applies whether or not a work had been published.

In order to deal with the situation regarding works created in the USA prior to the 1976 Act, a number of very detailed rules were laid down. It's too complicated to go into them here, but there is an excellent tool on the Cornell University website which provides a calculator for determining if and when a work might come into the public domain (ie be free from copyright). You can find it here. Pay attention to the section headed Special Cases.

Therefore if you can find out the nationality and place of residence of any artist you are interested in, as a rough guide, if it is the USA, use the Cornell calculator, and if it a European state, use the lifetime plus 70 years rule, to determine the copyright status of a painting. If an artist is anonymous then his/her work will be out of copyright 70 years after the work was painted.
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

Anna
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Post by Anna » Tue Apr 05, 2016 6:02 am

Hi Andy,

I forget to thank you. :) It's very clear this time and I know what to do about old paintings. :D

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