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Hi Anna,

I'm not an expert on copyright, so please keep that in mind.

The faculty member is correct - most slavish photos of art (i.e. photographs that document rather than create) are not likely to be protected under copyright law as they don't involve any creative work done on the part of the photographer.

Whether or not there is any creative work done on the part of the photographer is subjective and therefore complicated. Also, whether or not the estate can or cannot make a copyright claim over this photograph is not going to keep them from making a stink about it should it be used in ways they don't approve of. Consider if you'll be able to deal with them should they dispute the professor's use of it, and consider the boundaries crossed if the photo is used in ways they did not give permission for and how that might affect your relationship with them. If the estate goes as far as suing for the use of the photograph, a court of law will likely consider Bridgeman v. Corel, but there's no guaranty the estate will lose.

Bridgeman v. Corel does not only apply to works in the public domain. "The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it." Bridgeman v. Corel also only provides us with a precedent for US courts to rely upon, and is not law.

Copyright of the painting is separate from the copyright of the photograph of the painting. Using its likeness anywhere is likely going to need separate permissions/licenses if the estate can claim copyright over the painting itself. From your initial email, it sounds like they can't make that claim??

I hope this was helpful, and please correct me if I've misunderstood anything.

Samantha Levin


On Mon, Apr 15, 2019 at 10:17 AM Anna Boutin-Cooper <[log in to unmask]> wrote:
Hello ARLIS, 

I'm working on a particularly challenging copyright question from a faculty member, and wonder if anyone can help me answer a few lingering questions. It's regarding a photograph of a 1933 painting by a deceased artist with no legal heirs, of a relatively famous author, whose estate claims copyright over the work (as far as I'm aware, the photograph itself). The painting itself is at large, and the estate claims copyright over the photograph, which is what my faculty member is trying to use for a publication. 
  • The faculty member doesn't believe that the estate has legal claim to copyright over the photograph of the piece, under the decision set by Bridgeman v. Corel. I'm unsure about this, as I believe that that decision only applies to works within the public domain, which this piece is not. Am I correct in thinking that? 
  • Also, this estate has granted permission to use the photograph in print publishing for a nominal fee. This professor also wants to use the photograph in a digital exhibition, which the estate is less eager to grant permission for - they have asked her to quantify the number of users that will potentially visit the site over the next five years. Is this a normal ask? 

Many thanks in advance for your thoughts on this challenging matter!

Best, 
Anna 

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Anna Boutin-Cooper | she/her/hers

Research & Visual Arts Librarian Shadek-Fackenthal Library [log in to unmask] | 717.358.3896


Franklin & Marshall College

P.O. Box 3003

Lancaster, PA 17604-3003



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--

Samantha Levin, MSLIS
646.712.2820

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