The Catholic University of America

Copyright and Digital Images

 

II. When Copyright Permission Is Not Required

 

A. Public Domain

 

The public domain is the vast repository of creative works that are not protected by copyright law. In general, the following categories comprise the public domain:

  • works created before the enactment of copyright statutes, such as the works of Botticelli;

  • works that were once copyrighted, but for which the copyright has now expired;

  • works that are specifically put into the public domain by their authors or the owner of the copyright;

  • works that cannot be copyrighted due to lack of originality;

  • works published prior to January 1, 1978, that did not meet then existing technical formalities for copyright.

If the image to be used is in the public domain, then copyright is inapplicable, and the image may be used freely, including digitized, placed online, and made available to all users.

For further information on the public domain and a link to a handy chart that can be used to figure out public domain status of a work, see our Public Domain page.

 

Fine Art

 

The public domain analysis with respect to fine art can be especially difficult. The rules vary from country to country. In the U.S., prior to January 1, 1978, the length of copyright was determined from the date of publication. After January 1, 1978, the term of copyright is determined from the date of creation, and the term is the life of the author plus 70 years. Consider a painting that was created in 1913. The relevant question is when did "publication" occur, or has it ever occurred? A sale or donation of the painting to a museum or gallery open to the public would be a publication.

 

However, a sale to a private owner would not constitute publication. A work is considered "published" when it is displayed and catalogues or copies of the artwork are handed out to the public at the time of display. However, a public display by itself does not constitute publication. It is not always possible to obtain the relevant facts on the provenance of the painting or other works of fine art.

 

Once you have determined the public domain status of the art that is the subject of the photograph, you are left with the issue of whether or not the photograph itself is subject to copyright. It may be that there is simply not enough originality in the photograph to allow the photographer to claim copyright in the photo. This is especially the case when you are dealing with photographs that simply attempt to reproduce a two-dimensional object, such as a fine art painting.

For a case on this very issue, see Bridgeman Art Library v. Corel, 36 F. Supp. 2d 191 (S.D.N.Y. 1999). In the Bridgeman case, the court held that color transparencies of paintings which themselves are in the public domain, were not original and therefore not permissible subjects of valid copyright. The case has been given de facto precedential value by many in the art world and is generally considered by commentators to be a well reasoned case. See Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets, by Kathleen Connolly Butler, 21 Hastings Comm/Ent L.J. 55, Fall 1998 for the rationale behind the holding. Ms. Butler's article was written prior to the decision, but is an excellent summary of why the decision was considered in accord with copyright law.

 

The result of the Bridgeman case was to remove one layer of copyright protection that must be considered when dealing with copying images of fine art. If the work of art being photographed is not in the public domain, then permission must be obtained from the party who holds copyright to the work of art if the proposed use of the resulting image would not fall under the category of fair use.

 

Architecture

The Bridgeman decision dealt with two-dimensional works (paintings) and not architecture or sculpture. There is an argument that more creativity is possible when photographing a three-dimensional object, such as a building. As such, it would be safest to assume that copyright protection applies to just about all photographs of three-dimensional objects.

In the Bridgeman case, the photographer tried to faithfully produce, with as little change as possible, an image of the work of art. Some would argue that, by analogy, Bridgeman could be relied upon to apply to an image of an architectural work if that image is simply a factual representation absent any creativity. Defining a lack of creativity may be difficult though, because even very minor changes in a photograph of a building can make that image unique. When digitizing images of three-dimensional works, such as buildings, a public domain analysis similar to that for fine art is required, with a few considerations unique to architectural images.

 

Title 17 U.S.C. § 120 deals with the scope of exclusive rights in architectural works. The law in relevant part, at 17 U.S.C. § 120(a), states as follows:

Pictorial representations permitted. The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Note that architectural plans, three dimensional models, and other two-dimensional works related to architecture are protected under copyright law as pictorial, graphic or sculptural works, and the statutory provision quoted above does not apply to images other than those of constructed buildings visible from a public place.

 

Given this statutory exemption for architectural works, when digitizing images of buildings visible from a public place, one does not need to be concerned about whether or not the building itself is subject to copyright, as would be the case with a work of fine art. One must still, however, consider copyright in terms of the slide or photograph of the building (if one is not the author or copyright owner of the image in question). If one does not have clear rights to use the image, permission should be sought from the photographer, unless making a copy of the image is permitted under a "fair use" analysis.

 

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