query about copyright
Janice Pilch
pilch at UIUC.EDU
Tue May 30 17:14:13 UTC 2006
Dear Andrew,
Thanks very much for commenting on the copyright issues. Your
point about there being a common misperception that museums
(and libraries/archives) hold copyright to the materials in
their collections is on the mark. One of the most common
approaches people take when seeking copyright permissions for
paintings or photographs of paintings is to contact the
museum that owns the painting, not realizing that physical
ownership of a work has nothing to do with copyright
ownership of that work.
Seeking permission requires contacting the copyright holder,
and museums and archives more often than not do not even have
correct information on the identities of current copyright
holders. To make matters worse, due lack of information,
museum employees often "permit" an individual to use a work
or a photograph of a work in their collection when they do
not even have the authority to grant such permission. It gets
people confused all the time.
As for your second point about two-dimensional works, I just
want to provide some additional information. There is a legal
precedent in the U.S. supporting the view that photographs
of public domain paintings, if they are exact copies
("slavish photographic copy") of the paintings, are not
copyrightable, because they lack originality. See
Bridgeman Art Library Ltd. V. Corel Corp. at
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm.
The ruling supports the idea that you can copy an exact
replica of the painting without seeking permissions. Just
because this ruling was made in 1999 doesn’t mean that it
couldn’t be overruled in the future, because it is case law
and not a provision in the statute. Also, because this case
was decided in a circuit court, it does not necessarily
constitute a nationwide precedent, although in practice it
has become that.
My point here is just to say that there is a reason that
publishers and journals do not state blankly that a
photograph of a two-dimensional public domain work of art is
in the public domain-- because this is not in the law itself
and there are always situations in which the case could be
misinterpreted, or where there might be other legal aspects
involved--defamation, privacy, etc.
Just thought I would add this to the discussion--
Janice
---- Original message ----
>Date: Tue, 23 May 2006 21:02:45 -0500
>From: andrew wachtel <a-wachtel at NORTHWESTERN.EDU>
>Subject: Re: [SEELANGS] query about copyright
>To: SEELANGS at LISTSERV.CUNY.EDU
>
>Dear Janice,
>
>An excellent survey.
>
>There are two other things that perhaps should be noted here
(or if I am
>wrong, then my misperception should be corrected).
>
>The first, commonly held by many presses and individuals, is
that museums
>own some sort of copyright on materials held in their
collections. While it
>is certainly true that museums have the right to limit
access to items and
>even to prevent one from making a photograph, this is a
right of possession
>and not a copyright. As such, though they can ask for money
to make a copy
>of a work for you, they cannot claim to have any copyright
interest in a
>work (unless it is a work that itself is not in the public
domain and for
>which they have been assigned the copyright by the artist or
his/her heirs).
>
>The second point, and this one is even more vexing, is that,
as far as I
>understand, a photograph of a two-dimensional object (eg., a
painting) in
>the public domain is not copyrightable. So, if a publisher
puts out an
>album of photographs of, say, Repin paintings, anyone is
free to scan any of
>the images in that book and use them in subsequent
publications. If they
>do, they neither need to seek permission from the publisher
nor do they even
>have to acknowledge their source. In the case of the
potential lubok volume
>you describe, what is copyrightable is the organization and
selection of the
>lubki, not the individual photographs of any individual
lubok.
>
>If presses and journals would agree that these two points
are valid, it
>would make it a lot easier for people who need to publish
illustrations that
>accompany articles.
>
>Andrew Wachtel
>Northwestern University
>
>
>On 5/23/06 1:15 PM, "Janice Pilch" <pilch at UIUC.EDU> wrote:
>
>> Dear Natalie,
>>
>> Public domain status is based on the law of the country
where
>> the work is being used. A work can be protected in one
>> country and in the public domain in another, and
determining
>> this involves a number of factors. Do you intend to make
use
>> of the works in the U.S. or in Canada?
>>
>> If there is an identifiable author, that author holds the
>> initial rights, but the individual may transfer those
rights
>> to any other party, for example, to a publisher, or to an
>> heir or other assignee, at any time. If an eligible work is
>> anonymous, it still qualifies for copyright protection, and
>> that copyright term is usually based on the date of
creation
>> or publication.
>>
>> If lubki or lubki-type works are reproduced in books, and
the
>> original works are protected, the individual authors (or
>> their assignees or hers, etc.) hold the copyright. In
>> addition to this, there may be a copyright in the book as a
>> whole, as a compilation. In this case, the original author
>> (or assignee, heir, etc.) holds the copyright to the
original
>> images, and the editor or compiler holds the copyright to
the
>> compilation, as a derivative work. If the original works
are
>> not protected, the compiler still holds the rights to the
>> compilation.
>>
>> In the case of folk works, there are additional
>> considerations. Folk works are a gray area in copyright law
>> today, not all the issues have been resolved. Some nations
>> treat folk works differently from ³normal² works, by
>> stipulating in their copyright law that folk works are
>> protected, or the opposite-- that they are not. General
>> characteristic of folk works are that they have no
>> identifiable authors or dates of creation, they are
>> unpublished, and in the case of oral works, they are not
>> fixed in material form.
>>
>> So if any of the lubki or lubki-type prints you wish to use
>> have identifiable authors or dates of creation, they should
>> be treated as ³normal² works and not as folk works, and the
>> provisions of U.S. or Canadian law will apply if you intend
>> to use them in either country. If the lubki are truly
>> anonymous and don¹t have dates of creation, they can more
>> likely be considered true folk works, and lucky for you:
>>
>> The Russian Federation (where I assume all the lubki you
want
>> to use originated) does not extend copyright protection to
>> folk works, and the USSR did not at any time provide
>> protection to works of folk expression. The U.S. does
extend
>> copyright protection to expressions of folklore as original
>> works of authorship fixed in a tangible medium of
expression.
>> In Canada the scope of copyright protection for works of
>> folklore is grayer. However, because the lubok tradition
>> ended in the early 20th century, lubki would not have
>> received protection in the U.S. or Canada under the
Universal
>> Copyright Convention because the USSR joined that
convention
>> in 1973. And they would not have had their copyright
restored
>> under the Berne Convention in the U.S. or Canada because
they
>> were not protected in the RF on January 1, 1996. So, all
this
>> leads to the answer: real lubki are not protected today in
>> the RF, U.S. or Canada.
>>
>> Compilations of lubki may be protected as derivative works,
>> depending on when and where they were first published. If a
>> compilation is still protected, you are not authorized to
>> reproduce the selection or arrangement in whole or large
part
>> without permissions, i.e. you cannot reprint a published
>> collection of lubki if it is still copyrighted. But the
>> individual prints would not be protected.
>>
>> The key thing for you is to make sure that you are dealing
>> with real lubki as folk works and not lubki-style prints
that
>> can be attributed to an author or that have a defined date
of
>> creation. And it is important to distinguish between
original
>> works of folklore and compilations of folklore, which may
>> qualify as derivative works, in order to make the
appropriate
>> assessments on copyright protection.
>>
>> Finally, I am offering this advice as chair of the AAASS
>> Bibliography and Documentation Subcommittee on Copyright
>> Issues. I have to add the customary disclaimer that I am
not
>> a lawyer and not authorized to give legal advice. The above
>> information should not be taken as legally binding, but
only
>> as informal assistance to provide some direction for you.
>> Please feel free contact me directly if you have any
further
>> questions!
>>
>> Sincerely,
>>
>> Janice Pilch
>>
>>
>> ---- Original message ----
>>> Date: Thu, 18 May 2006 14:53:05 -0600
>>> From: nataliek at UALBERTA.CA
>>> Subject: [SEELANGS] query about copyright
>>> To: SEELANGS at LISTSERV.CUNY.EDU
>>>
>>> Dear Fellow list members,
>>>
>>> I'm looking for some illustrations and would love to use
>> lubki. I know
>>> that a number of folklore books have used lubki as
>> illustrations. Here
>>> is the question (or rather questions): are lubki in the
>> public domain?
>>> If not, who holds the copyright? What about lubki that
have
>> been
>>> reproduced in books? Who owns those?
>>>
>>> On a related topic, does anyone know of books with
drawings
>> that could
>>> be used to illustrate Slavic folklore? I have found
photos
>> that are
>>> outside copyright restrictions. But some drawings would
be
>> nice,
>>> especially for beings of the imagination like the
>> domovoi/domovyk,
>>> leshii/lisovyk, etc. Again, these have to be in the
public
>> domain.
>>> This means published before 1923.
>>>
>>> Thanks in advance.
>>>
>>> Natalie Kononenko
>>>
>>> Kule Chair of Ukrainian Ethnography
>>> University of Alberta
>>> Modern Languages and Cultural Studies
>>> 200 Arts Building
>>> Edmonton, Alberta, Canada T6G 2E6
>>> Phone: 780-492-6810
>>> Web: http://www.arts.ualberta.ca/uvp/
>>>
>>> ----------------------------------------------------------
---
>> ------------
>>> Use your web browser to search the archives, control your
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>> ------------
>> ----------------------------------------
>> Janice T. Pilch, Assistant Professor of Library
Administration; Acting Head,
>> Slavic and East European Acquisitions; Librarian for South
Slavic Studies,
>> Baltic Studies, and Slavic Languages & Literatures
>> University of Illinois at Urbana-Champaign
>> 1408 West Gregory Drive, Urbana, IL 61801
>> Tel. (217) 244-9399
>
>Andrew Wachtel
>Dean, The Graduate School
>Bertha and Max Dressler Professor in the Humanities
>Director, Center for International and Comparative Studies
>Northwestern University
>Evanston, IL 60208
>
>-------------------------------------------------------------
------------
> Use your web browser to search the archives, control your
subscription
> options, and more. Visit and bookmark the SEELANGS Web
Interface at:
> http://seelangs.home.comcast.net/
>-------------------------------------------------------------
------------
----------------------------------------
Janice T. Pilch, Assistant Professor of Library Administration; Acting Head, Slavic and East European Acquisitions; Librarian for South Slavic Studies, Baltic Studies, and Slavic Languages & Literatures
University of Illinois at Urbana-Champaign
1408 West Gregory Drive, Urbana, IL 61801
Tel. (217) 244-9399
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