query about copyright

Tue May 30 18:53:07 UTC 2006

Just to clarify what Janice wrote concerning copying exact reproductions of 
paintings, her statement that "you can copy an exact replica of the 
painting without seeking permissions" only applies to paintings that are 
already in the public domain.  If the original painting is still protected 
by copyright, a first, second or third generation exact replica of the 
painting would require the permission of the copyright holder (usually the 
artist).

Regards,
Michael Newcity

--On Tuesday, May 30, 2006 12:14 PM -0500 Janice Pilch <pilch at UIUC.EDU> 
wrote:

> 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
>>> subscription
>>>>  options, and more.  Visit and bookmark the SEELANGS Web
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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

Center for Slavic, Eurasian, and East European Studies
Duke University
303 Languages Building
Box 90260
Durham, NC  27708-0260
Tel.: 919-660-3150
Fax: 919-660-3188

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