Copyright of prints from a painting

Advice for those new to the concepts of copyright
Post Reply
xantos
New Member
New  Member
Posts: 3
Joined: Thu Jun 14, 2018 9:30 am

Copyright of prints from a painting

Post by xantos » Thu Jun 14, 2018 10:00 am

Hi. I'm new to this excellent forum and to copyright issues!

I'm hoping to buy an original Victorian watercolour that was painted specifically to be used as the master to produce an engraving for a book. The engraving from the book is widely available on the Internet and although obviously very similar to the original it's not identical. I'm looking into the possibility of trying to help fund the purchase by producing and selling high quality prints from the original painting. Can I copyright the prints? I've had a rummage round the forum but am not confident that I've found the right answer.

Thanks in advance.

User avatar
AndyJ
Oracle
Oracle
Posts: 1921
Joined: Fri Jan 29, 2010 12:43 am

Re: Copyright of prints from a painting

Post by AndyJ » Thu Jun 14, 2018 1:59 pm

Hi xantos,

We first need to be sure that the painting has been 'published' at some stage during its life. If it hasn't, then copyright in it will still exist and you would be prevented from making copies of it without first gaining permission from the heirs of the artist, or more likely, the heirs of the person who commissioned the painting in the first place.

You say that the engraving which was made from the painting is not an exact facsimile of the painting. The degree to which the former differs from the latter would determine whether the printed version of the engraving constituted a copy of the painting which was made available to the public, ie 'published'. If the differences are minor then there probably won't be a dispute about this, since the law deems that if a substantial part of the original has been published with the permission of the artist, then publication of the copies will have activated the copyright, which then would subsequently have ceased at some later point, probably fifty years from the date of publication*. However there is a 'but' here. That involves the fact that the original was in colour whereas the engraving would have been in black and white. Based on some very old caselaw, this could mean that a substantial element of the original was not reproduced, namely the colour, meaning that publication might not be deemed to have occurred. It is therefore important to know whether the prints from the engraving were hand-cloured before being issued to the public. If they were then the argument about substantiality would probably fall away and we can assume that the painting has been published, even though the hand colouring may well differ from the original watercolour. If the prints were in black and white only, a question mark might remain.

On the assumption that no copyright remains in the original painting you can certainly go ahead and make new reproductions of it and sell the prints. The question of whether you will thereby create a new copyright is a fraught one on which academic opinion is divided. As the law currently stands, a work is only eligible for copyright if it is 'original' (see section 1(1)(a) of the Copyright Designs and Patents Act 1988). This means that the work must be the intellectual creation of the author (see paragraph 37 of judgment of the Court of Justice of the European Union in the case of known as Infopaq). Clearly mere mechanical copying, say by scanning or digital photography, would not meet this criterion. Only if the copyist has to make a number of key intellectual/creative decisions during the copying process, is a new copyright likely to come about. Obviously I can't comment on whether that might apply in your case, but it seems unlikely on the facts you have given.

As a matter of interest, although it is 'old' law and so would not apply today, one of the earliest court cases concerning photographs was in 1869 and was about an almost identical issue: whether a photograph of a engraving was entitled to copyright. It was known as the Graves case, and you can read about it here (para 6.1.1).


* The actual length of the copyright term will depend on a) when the painting was made and b) when publication took place. Suffice it to say, provided that the date of publication was before 1946, copyright will have now expired.
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

xantos
New Member
New  Member
Posts: 3
Joined: Thu Jun 14, 2018 9:30 am

Re: Copyright of prints from a painting

Post by xantos » Thu Jun 14, 2018 4:16 pm

Hi Andy and thank you for your comprehensive reply, it's very much appreciated.

I think I now understand the situation and will spend some time looking at the case law and legislation you mentioned. The original watercolour has not itself been published as far as know, but the engravings, which are almost identical, have. If you look closely you can see brush strokes in the watercolour which are not visible in the engravings. The engravings were actually made in colour using multiple hand-engraved wood blocks. The painting and engravings date from the 1870's. As I would want to try and reproduce the watercolour as near to the original as possible I don't think there would be grounds to claim copyright. I just wanted to make sure that what I wanted to do was legal and to try to get some protection, if that was possible.

Thanks again and best regards.

User avatar
AndyJ
Oracle
Oracle
Posts: 1921
Joined: Fri Jan 29, 2010 12:43 am

Re: Copyright of prints from a painting

Post by AndyJ » Thu Jun 14, 2018 9:03 pm

Hi again xantos,

Thanks for the extra detail. I'm sorry if I have confused you over the publication issue. From what you have said about the colour reproductions of the engraving, what follows is for imterest only, as I am reasonably sure the painting is no longer in copyright.

A painting per se cannot be 'published' in the copyright sense because even exhibiting it in a public gallery is not classed as 'publication'. The only way in which a painting can be published is by the lawful release of copies of it, as was the case with the engravings of this painting. Today such copies would be made, as you propose, by making digital reproductions of the painting. Before the days of digital photographs, conventional photography was the preferred method of making copies, either in the form of photographic prints or via the process of printing by photolithography. Another alternative method, which does not lend itslf to mass production, is copying by another artist, usually using the same medium as the original.

Under the copyright law of today, whether or not a work such as a painting has been published is no longer relevant, as the period of copyright protection is determined solely by the lifetime of the artist plus 70 years after his death.
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

xantos
New Member
New  Member
Posts: 3
Joined: Thu Jun 14, 2018 9:30 am

Re: Copyright of prints from a painting

Post by xantos » Mon Jun 18, 2018 11:53 am

Thanks again Andy and sorry for the delay in replying. I appreciate your guidance, it's been most useful.

Thanks and regards.

Post Reply