Copyright of photgraphs of original artwork

[RHPS]

If someone comes to me with an oriiginal artwork and wants me to copy it and make prints, who owns (the copyright of) the digital image? Assume that I have charged a fairly nominal "set-up" charge to photograph the artwork and adjust the colours etc for a good match in the expectation of making money on the print orders.

[Mark Lindquist]

If someone comes to me with an oriiginal artwork and wants me to copy it and make prints, who owns (the copyright of) the digital image? Assume that I have charged a fairly nominal "set-up" charge to photograph the artwork and adjust the colours etc for a good match in the expectation of making money on the print orders.

You would own the rights to your digital image, however the copyright of the artist trumps it.  I suggest you get a non-exclusive license from the artist to use the artwork that specifies your usage and covers everything you would plan to do with the original artwork.  If the copyright has expired, then the digital image is all yours.

If you violate an existing copyright by photographing an artwork without permission, then begin to sell it, you're on shaky ground.  If you have a signed non-exclusive license, you're good to go.

If you photograph an image with permission, then sell prints without permission, then same violation occurs.

Copyright always refers, first, to the original artwork.

An example:  Someone comes to you with an Ansel Adams photo print and they want you to make a copy and additional prints for them.  No can do.
If you want to sell prints made of copies of the big guy's photo, still no can do.  BIG no can do.

FWIW/YMMV

Mark

 

[Malcolm Payne]

There's a long-ish thread from 2014 at http://forum.luminous-landscape.com/index.php?topic=87160 that goes into this in some depth, that may be helpful. My own involvement in the thread, detailing a problem with a particular client, starts from post #6.

Cheers,

Malcolm,

[RHPS]

Mark - Thanks for your  response. I have no intention of using the files for anythng except printing for my client, but if the client asks for the files, then what?

Malcolm - The thread that you linked to is absolutely what I had in mind. I will wade through it with interest when I have a bit more time.

[Mark Lindquist]

Mark - Thanks for your  response. I have no intention of using the files for anythng except printing for my client, but if the client asks for the files, then what?

 Ideally you should have made an agreement that  provides for this contingency. If you haven't specified this or at least explained that there is a significant amount of  processes involved  that may be proprietary, your client may assume they have entitlement to the files.  I think this is something that has to either be negotiated up front or in the fine print in an agreement.

Mark

[mfryd]

Copyright protects original works of authorship.   In order for something to be protectable by US copyright, there must some creative aspect.   The bar is low, but a mechanical reproduction of an existing flat piece of art may not qualify.   Similarly, you probably would not be able to claim copyright in the result of putting a B&W line drawing on a copier.

Assuming that there is enough creative input to warrant protection, the new work would be a "derivative work" of the original artwork.  As such, it would be covered by the copyright of the original work as well as the copyright to the new work.   Thus the photographer would not be able to make prints without permission of the original artist.  In fact, the photographer is not even allowed to create the derivative work without the copyright holder's permission.

Copyright does not prevent you from giving a legitimate copy to someone else.  Thus, if you were allowed to take a photo, you can give that memory card to someone else.  Position of a digital file does not mean that one is allowed to make copies.  When you purchase a CD, you get a digital copy of the music, however this does not allow you to make unlimited copies as you see fit.

[Ernst Dinkla]

If someone comes to me with an oriiginal artwork and wants me to copy it and make prints, who owns (the copyright of) the digital image? Assume that I have charged a fairly nominal "set-up" charge to photograph the artwork and adjust the colours etc for a good match in the expectation of making money on the print orders.

The other way around is now also covered in law:

https://en.wikipedia.org/wiki/Rogers_v._Koons


Met vriendelijke groet, Ernst

http://www.pigment-print.com/spectralplots/spectrumviz_1.htm
January 2016 update, 700+ inkjet media white spectral plots

[Mark Lindquist]

Not always...

[Ernst Dinkla]

Not always...

Most of the Warhol cases were settled out of court according this article:

http://designobserver.com/feature/art-rogers-vs-jeff-koons/6467/

Interesting point of view in that article, not in line with the court's decision on Rogers/Koons. My vote goes to the judge though.


Met vriendelijke groet, Ernst

http://www.pigment-print.com/spectralplots/spectrumviz_1.htm
January 2016 update, 700+ inkjet media white spectral plots

[Mark Lindquist]

Not all of Koons "appropriation" cases were upheld.  In some there were reversals:

Blanch v. Koons AG

Andrea BLANCH, Plaintiff-Appellant, v. Jeff KOONS, the Solomon R. Guggenheim Foundation, and Deutsche Bank AG, Defendants-Appellees. - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1374144.html#sthash.ACJ44ebN.dpuf

Conclusion:

Having explored the statutory factors and weighed them together in light of the purposes of copyright, Campbell, 510 U.S. at 78, we think that the district court's conclusion was correct-that copyright law's goal of “promoting the Progress of Science and useful Arts,” U.S. Const., art.   I, § 8, cl. 8, would be better served by allowing Koons's use of “Silk Sandals” than by preventing it, see Castle Rock Entm't, 150 F.3d at 141.   We therefore conclude that neither he nor the other defendants engaged in or are liable for copyright infringement.   We affirm the judgment of the district court. - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1374144.html#sthash.ACJ44ebN.dpuf

[Mark Lindquist]

Most of the Warhol cases were settled out of court according this article:

http://designobserver.com/feature/art-rogers-vs-jeff-koons/6467/

Met vriendelijke groet, Ernst

According to Wikipedia:

Warhol and appropriation - wikipedia

"...Warhol's famous Campbell's Soup Cans are generally held to be non-infringing, despite being clearly appropriated, because "the public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products", according to expert trademark lawyer Jerome Gilson.[13]..."

[Mark Lindquist]

http://designobserver.com/feature/art-rogers-vs-jeff-koons/6467/

Interesting point of view in that article, not in line with the court's decision on Rogers/Koons. My vote goes to the judge though.


Met vriendelijke groet, Ernst

http://www.pigment-print.com/spectralplots/spectrumviz_1.htm
January 2016 update, 700+ inkjet media white spectral plots

Yup.  Mine too.  Agreed, Ernst.

[AFairley]

According to Wikipedia:

Warhol and appropriation - wikipedia

"...Warhol's famous Campbell's Soup Cans are generally held to be non-infringing, despite being clearly appropriated, because "the public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products", according to expert trademark lawyer Jerome Gilson.[13]..."

I think that's talking about trademark rather than copyright. Very different animals.

[Mark Lindquist]

I think that's talking about trademark rather than copyright. Very different animals.

If someone has a trademark, more often than not, they also have a copyright.  If someone has a copyright, more often then not, they do not have a trademark.

Here's some interesting reading on the subject: Did Warhol violate Cambell"s Soups copyright?

You are correct about the distinction between copyright and trademark, but it is relatively complicated:

"...Fair Use is determined on a case by case basis after the owner brings an infringment suit against the infringing party. It could be that a work constitutes copyright infringement, but the owner doesn't care.

... the Andy Warhol Campbell Soup can was taken from a Campbell soup label. The label is a trademark, while (a) photograph is a pictorial, graphic or sculptural work as defined under the Act. Andy Warhol's use could be described as nominative use. There is no nominative use defense under copyright law..."



Edit for spelling/syntax

[enduser]

I assume that Titian's work is now out of copyright?  And I find a hi-res photo of his work with no identifying data accompanying the file.  How is copyright of such an image managed?

Thanks.

[Roscolo]

If someone comes to me with an oriiginal artwork and wants me to copy it and make prints, who owns (the copyright of) the digital image? Assume that I have charged a fairly nominal "set-up" charge to photograph the artwork and adjust the colours etc for a good match in the expectation of making money on the print orders.

Had this issue come up recently. New client told me how she could not find an adequate printer and all about needing "a lot" of prints and printing done. Then she came to my studio and showed me samples of some of the "bad" work (the prints she showed me were actually quite good, so good that I told her I wasn't sure I could improve upon them) from several other quite reputable studios in a major city. This is almost always a bad sign. I'm sure if I contacted those print studios, they would each have a story to tell! Nonetheless, I made her some proofs and she said they were the best prints she had ever had done. She did not order any prints at the time. After she left, I noticed she had stolen ALL of the printed proof prints from my work table!

She called the next day and asked me to send her the digital file, to which I had done some hours of digital editing to specific areas. I asked her how many prints she needed. She said she didn't need any prints right now, but she needed that file. I told her I could not provide her with the file. She told me all about how it was her copyrighted work, and demanded I give her the file. I told her she owned the copyright to the original artwork, but she did not own the rights to my digital file that represented my work, that she had misrepresented to me that she needed prints, and I had done the work as agreed at a discounted rate because she said it involved an order of prints. Had she been honest with me and told me she only wanted the digital editing work done, she would have had to pay a higher hourly rate. Moral of the story? There isn't one. Some people are just dishonest. Fortunately in my experience such dishonest people have only come to my business at a rate of about 1 every 7 years or so.

[Mark Lindquist]

I assume that Titian's work is now out of copyright?  And I find a hi-res photo of his work with no identifying data accompanying the file.  How is copyright of such an image managed?

Thanks.

I believe that's a moral question.  The photo belongs to someone, even if you don't know who.  That photo should technically only be copied if you have permission, but it's not always possible.  If you take a photo of the original Titian, you own the rights to your photo but not to the original work.  If you make a photo of a work in a museum, the museum may reserve rights to photos, but they can neither own the copyright to the Titian, as well.

The problem comes if/when you made a copy of the photo of the Titian and did something with it and the original photographer somehow found out.  Then, I believe you would be violating his copyright of his photo of the no longer copyrighted painting.

Based on my experience, that's what I think is correct.

If you just take a photo of a work in a museum it would be a good idea to check the museum's policies.  They may not have any.  In that case the digital file is yours but it can never be considered an original creation.

Edit:  If, however, you make a photo of the original Titian and alter it significantly enough to create a different contextually, in essence so that the new work is "transformative", then it becomes an appropriation and then as a new artwork, can be copyrighted if there is a significant enough distinction.  Again, based on my experience, but these things are mostly decided in courts if gets to that degree of seriousness.