Paintings for the Public Domain

by Robert Nagle on 4/6/2005

in Legal,Open Media

Warning: this post reflects an evolving understanding of paintings and public domain. I am leaving this page here for historical reasons, but you should check this page first for information. Remember that I am not a lawyer!

Professor Ochoa’s response is reasonable and apt, particularly this comment: ‘Where the public does not have access to the original painting, the ONLY way it has to reproduce the painting itself is to reproduce a reproduction of it. Unless we hold that the Bridgeman photographs can be freely copied, the painting, as a practical matter, is not in the public domain.’
In other words, unless museums are willing to allow people to photograph the original work, the paintings are not truly in the public domain. I do disagree with his closing comment, in which he attempts to distinguish between US copyright law and other nations. The concepts of ‘fair use’ and ‘public domain’ are recognized on an international level. Also, is a person making a slavish photographic reproduction of a work of art truly the author of the photograph? This point was discussed in the Bridgeman decision. The term copyist is far more appropriate, despite the amount of work involved in taking the photograph. An apt comparison is this (earlier discussed with the example of Keats’s poetry) – if a photographer who merely reproduces a work of art is the author of the reproduction, then someone who copies a novel out word-for-word is also its author. Clearly, this cannot be the case. Yet the amount of work required to photograph the painting is the same as the work involved in copying out a book by hand. In other words, labor does not imply originality, or a creative spark. You can take three minutes or three days to make a reproduction. You can use a camera or Martian technology. It doesn’t matter. You are merely copying the work. If it seems as though I’m being simplistic here, rest assured that I am – and it is deliberate. This issue is very simple and analogies help reveal the simplicity.

Google Post about how to find public domain web photos of paintings

Wikipedia Guide to public domain art
. It says: Accurate photographs of visual artworks lack expressive content and are automatically in the public domain once the painting’s copyright has expired (which it has in the US if it was published before 1923). All other copyright notices can safely be ignored.

Timeline of the history of photography.

Editorial: Publicly financed art should have open licenses.

Thoughts by Michael Greenhalgh about whether photographs of paintings should be classified in the public domain:

There may be two copyrights: copyright in the artistic work (for example, a painting) and copyright in the photograph of the artistic work). You will generally need permission from the owner of copyright in the artistic work unless the copyright has expired. It is unlikely you need permission in relation to the photograph, if the photograph depicts nothing but the artistic work and is indistinguishable from other photographs of the same work. Otherwise, you will generally need permission from the owner of copyright in the photograph.In other words, when someone photographs a painting of Van Gogh in a museum, producing a picture that is indistinguishable from other photographs of the same work, this cannot be considered an original art creation: it is precisely requested that the photographer annihilate his own personality to only mirror the artist’s own personality and reflect the artwork with maximum fidelity through the photograph. Thus, the photographer does not hold any copyright on the picture itself.

(See also this background legal research about the photographs of old paintings copyright issue. More about this case, called Bridgeman Art Library v Corel Corp (Another analysis here) . See also invaluable chart detailing copyright law).

Other places for free photos/graphics: Robin Good’s Rundown of Free Graphics Sites, Flickr browser and Yahoo CC search

Victorianweb Paintings is an exhaustive online collection of British painters from the Victorian period.

CGFA Painting Site has the largest repository of high quality online scans. There is a lot of copyrighted content mixed in with public domain, but luckily everything is dated.

Update 8/2005: The best source of high quality public domain paintings seems to be Art Resource Center. Just fantastic.

Update 8/2006: It’s just starting but the Wikimedia site has the best site organized by category.

Finally, here’s a nice collection of nude paintings and high quality, all tasteful and lovely. Unfortunately, nothing seems to have dates, but they are easy to google. From that I discovered the great portraits of Frederick Carl Frieseke (3 index pages worth!). Here’s my favorite.

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