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Comment by sgc | Hacker News Reader

How is it possible to release public domain images using a CC0 license? That sounds completely unenforceable to me.

The images are almost certainly in the public domain under current U.S. case law. Releasing them under CC0 is a way of saying, “just in case they aren’t in the public domain, now they effectively are.” I don’t know what you mean by unenforceable—what is there in CC0 to enforce?

if you want to release images as public domain, you might also wish to release them with a CC0 license since I have heard (but don’t know any specific examples) that there are some situations/legal jurisdictions where use of a public domain asset might be unacceptable, but a clear license mostly equivalent to the public domain is acceptable

Germany, for example. There is no "putting something into the public domain", works pass into the public domain only through time-limits of copyright.

If it isn't it doesn't matter. If it is, it has the same effect as if it isn't.

Why would it be in the public domain?

If I take a photograph of something, don't I own the copyright to that photo? Even if it is a photo of the Mona Lisa or the Parthenon?

In the US, no. A photograph of a 2D artwork is just a copy of that artwork, and not a copyrightable original work. https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel....

in Australia, yes a photographic reproduction of a 2D artwork is copyrightable. this was a point of conflict between the wikimedia foundation and a gallery i used to work for, which made a significant income from licensing photos of artworks, many of which were themselves in the public domain. this might seem unreasonable but it’s worth pointing out that producing highest quality photo reproductions of artwork is a specialist skill requiring quite expensive equipment, and there are specific choices that must be made that are on some level subjective. to put it in hacker news language- it’s a lossy operation and the photographer decides what is and is not important to keep- e.g. textural or reflective properties of the paint, vs. vividness of colours. and how exactly are you supposed to reproduce photographically the gold foil on gustav klimt’s work?

A CC0 license or some such could well be a reasonable hedge against such vagueness by making explicit the terms of use.

The threshold of originality is complicated and judged differently by different people and countries:

https://en.wikipedia.org/wiki/Threshold_of_originality

A Xerox machine is a complicated, specialist piece of equipment but using one to duplicate the work of someone else is not and should not allow copyright on the duplicate.

What your colleagues did is literally reproduce the work of another, and assert copyright on the copy.

What if I took the image your gallery took, used state of the art JPEG compression software on it and created a new optimized file, would I know be entitled to copyright on that?

But a Xerox machine does not add any creative aspect; if you are going to shoot a painting and do it well, you'd need to decide on what lighting you wanted, then rig that - say, side lighting to highlight the brush strokes or a more head-on, softer light to subdue them.

In your jpeg example, I think (IANAL!) you might have had a stronger case if you artifacted the heck out of it, rather than faithfully recreating the original photo - the artifacts could be argued to be some form of artistic expression.

How can it be creative if it literally is attempting a faithful reproduction? You are confusing work with creativity. It might not be easy, it might require a lot of effort by specialists, but it is not creative. Therefor should have no copyright protection.

As I suggested - the photographer may decide to highlight the brush strokes, for instance - or subdue them. Both approaches would be a faithful (as such things go) reproduction of the original artwork; its appearance would depend, among other factors, of the light you saw it in.

That being said, I am not convinced such reproductions should have full copyright protection on par with that granted an original work of art - but there ought to be some mechanism to recognise the effort and skill which went into creating it; otherwise there would hardly be any incentive to create high quality reproductions.

Tricky, that.

It was a British gallery, and the British law that applies does indeed extend copyright to the act of making exact copies.

* https://en.wikipedia.org/wiki/National_Portrait_Gallery_and_...

People who defend the legal position with "But it's creative effort!" do not quite understand the test that applies, and are not actually explaining things correctly. The legal test in British law is whether it is original, the qualifiation that is used in the legislation itself, and there have been a few landmark cases in the 20th century where originality most definitely did not mean creativity. Indeed, it is one of the little-mentioned problems with BrExit that it has quite drastic effects on copyright law, as some of the legal tests that apply derive from EU Court of Justice decisions that may or may not continue to have force. It has been opined by some that the so-called "Infopaq" standard may cease to be applied by British courts, which may revert to older, lower, thresholds for originality.

* https://www.cipil.law.cam.ac.uk/virtual-museum

* https://www.legislation.gov.uk/ukpga/1988/48/section/1

Reading over the linked page, it appears that the distinction is how much originality there is in the photograph. In this case, it seems clear the museum is just posting a "mere copy" without any embellishment or artist changes.

So I guess I'm with the OP about being unclear what the value of the license is. Oh well, maybe it's just a simple CYA/clarify expectations/whatever.

They stated as much in the release.

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