Hacker News Reader

Comment by sudobash1 | Hacker News Reader

> I found a great painting, and it’s really old, and the author died a long time ago, but I can’t find a reproduction in a book. Can I use it?

> No. You must find a reproduction of your selected painting in a book published before January 1, 1928.

Can anybody explain why the emphasis on needing to find an out of copyright book with a reproduction of the painting? If there is a painting from (eg) the 17th century which was never reproduced in a book, what is the potential legal problem with treating it as public domain? I would assume that any art from the 17th century is now PD. Is the issue with the "date of first publication"? Even if a centuries-old painting was never "published" is it possible for it to be copyrighted?

As I understand. Given Bridgeman Art Library v. Corel Corp.[1], and faithful reproduction of a 2d PD work is also PD.

1: https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel....

View on HN

In the US, copyright status is determined by when something was published, not how old it is. The two are not related. That's how we get stupid things like the University of California and the Mark Twain Foundation claiming a copyright on his autobiography, written circa 1909, until 2047 - 137 years after his death.[1]

[1] https://en.wikipedia.org/wiki/Autobiography_of_Mark_Twain#Ma...

So if I found an amateur painting that was centuries old in an attic somewhere, and posted a scan of it on my blog, I would then be the copyright holder of that painting? That feels so wrong.

No, you would be the copyright holder of your photograph.

My understanding of copyright rulings in the US (eg see Bridgeman Art Library v. Corel Corp. above) is that a faithful photograph of a painting is not considered "original". Therefore, if I do not have the copyright to the painting, neither would I have copyright over the photo.

I'm speculating a bit here, but I suspect that answer reflects a practically risk-averse read of the same case, for two reasons. One is that, as a district court opinion, Bridgeman isn't _necessarily_ binding federal precedent. (I don't want to overstate that point, because Bridgeman is well established and has been found persuasive by other courts. Still, given that this site appears to distribute the resulting ebooks itself, I assume their appetite for risk here is pretty small.)

Even following Bridgeman though, there is a teeny bit of analysis that you have to do to determine that the reproduction is a faithful photographic copy of the original. In most cases that's straightforward, but again, if you really want to limit risk and as in this case your application doesn't require a particular image, it might be worth cutting out that analysis altogether and going with media that is simply outside of the range of copyright terms.

It seems that Bridgeman is clear-cut, has even been extended to 3D reproductions, and it doesn't seem that the courts are interested in overturning it. Naturally, this means museums must ignore it and full-throatedly declare that of course they own the copyright to their faithful photographic reproductions of public domain artworks, a lie which will be repeated endlessly by people who think those who have a financial interest in the law being a certain way would know best. See also the ridiculously over-broad declarations made by the NFL of how much control they have over the use of the phrase "Super Bowl" to describe a specific football game: Absolute shameless lying is par for the course when it comes to people who think they ought to have a proprietary interest in something, especially if the law is not on their side.

The practice is so widespread that there's even a name for it. https://en.wikipedia.org/wiki/Copyfraud

It's not the painting at issue, it's the reproduction. Photographs of paintings have copyrights that belong to the photographer. If you have access the the old painting and take a picture of it, you control the copyright of that reproduction.

I think the confusion here stems from the fact that that statement assumes you don't have access to the painting, which is the most common case.

Wikimedia Commons disagrees. I know they're not arbiter of law, but you'd hope they have it right given the scale of how wrong they'd be if they were wrong.

https://commons.wikimedia.org/wiki/Commons:Reuse_of_PD-Art_p...

> Photographs of paintings have copyrights that belong to the photographer.

This is highly dependent of the country that you are in. In the case of the US, the courts have ruled that a faithful reproduction (eg photograph) is not original enough to merit a separate copyright (see my like to Bridgeman Art Library v. Corel Corporation above).

Additionally, the post is not saying that you are required to use the exact photo found in the out of copyright book, but rather that you are required to find a photo (any photo) of the same painting in an out of copyright book.

You’re right that a faithful photograph of a public domain work is not copyrightable in the US.

But consider this scenario. You run a website that allows volunteers to upload books with covers derived from public domain artwork. Then you get a letter in the mail. You’re being sued for copyright infringement. The plaintiff claims one of your book covers is derived from not a 19th‐century classic work of art, but a 1957 painting made in a classic style.

What do you do?

A scan of a book page printed in 1928 that reproduces the painting would make the lawsuit go away very quickly. That’s handy.

A webpage from a major museum with the painting clearly marked CC0 would provide evidence that you used the painting in good faith. That’s also handy.

If you have neither one, all of a sudden proving this is actually a public domain painting becomes a lot harder. (Worst case scenario: it’s not, and you’re liable!)

I’m not affiliated with Standard Ebooks, but I’ve always assumed this was the underlying reasoning behind the policy. It’s stricter than I would be if I ran such a site, but I can’t fault them considering the clear benefit it provides.

Reply on news.ycombinator.com