Can a reproduction of a public domain artwork be copyrighted?

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Halie0201
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Can a reproduction of a public domain artwork be copyrighted?

Post by Halie0201 » Sat Jan 20, 2018 7:56 pm

I am just wondering if a faithful reproduction of a painting in public domain can be copyrighted in UK, like a photo of Mona Lisa?

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AndyJ
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Re: Can a reproduction of a public domain artwork be copyrighted?

Post by AndyJ » Sat Jan 20, 2018 8:52 pm

Hi Halie,

This is a subject of much conjecture but without any recent UK court cases to give us clarity.
In theory a faithful reproduction cannot itself be 'original' in the copyright sense, because the author of the copy has no means of expressing his/her individual creativity, and thus such a work cannot be eligible for copyright. This is essentially the position in the USA following a case known as Bridgeman Art Library v Corel Corp. Incidentally that case involved photographs made using a film camera, whereas today such copies would almost certainly be done using digital media which of course offers greater opportunities for autonomous decisons by the camera's software.

In the UK we have no such clear court decision. There was a case known as AntiquesPortfolio.com v Rodney Fitch & Co (2001) in which copyright was found to exist in photographs of various antiques and artworks, used to illustrate an antiques encyclopedia, on the basis that the photographer had to make a number of creative choices about how to light the objects, obtain the correct exposure and colour reproduction etc, but again that was in the pre-digital era. Also in that case the photographs of the artworks were illustrative, and not intended to be faithful reproductions.

In contrast to that decision, we have fairly strong guidance (although it is not legally binding) from the Government's Intellectual Property Office that digital reproductions of the sort you refer to will not attract copyright (see page 3 of this Copyright Notice).

Many musuems and art galleries claim copyright in digital reproductions of out-of-copyright works they own but whenever they are challenged over this, tend to back down in order to avoid the matter going to court. (See this academic paper for a more in-depth discussion of the topic.
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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