Image copyright restrictions
Comments
-
I keep running into images with "copyright restrictions" These images are of medieval persons c 400-900CE by artists in the 12th-15th centuries. It seems that some of these are not restricted and others are. How can I tell the difference? My understanding of the basic copyright protection is:
Sharon Richards
I believe the claim of copyright protection is in error. The original work was created several centuries ago, and the photographic reproduction of this work is subject to current US law which does not provide copyright protection of an original image that no longer has such protection:
This article describes copyright protections for photographic images of original works of art in various countries:
Neighbouring rights ("simple photographs")
If the photo is sufficiently original, the author can additionally be granted normal copyright protection. In the Nordic countries, for example, the right applies to all photographs, including "faithful reproduction" images. Since 2021 following the Directive on Copyright in the Digital Single Market this photographer's right of photos of two dimensional artworks is only granted as long as the photographed artwork itself is protected by copyright.
Germany
Simple photographs of works of visual art in the public domain are not protected. Neither the German Copyright Act nor the EU Directive that prompted the new provision give a definition of the term "works of visual art". In the official reasoning provided with the (at the time: proposed) amendment, the German government notes that it understands the term to match a similar term used in another EU Directive, where "visual works" are explained as including "fine art, photography, illustration, design, architecture, sketches of the latter works and other such works that are contained in books, journals, newspapers and magazines or other works".[6]
Italy
Reproduction photography is protected by copyright in Italy, but this right subsists until 20 years have elapsed from the year in which the picture was produced.[16][17] Should follow Directive on Copyright in the Digital Single Market as part of the EU.
Japan
The Agency for Cultural Affairs states photographic reproductions are not copyrightable, though there have been no court decisions. As a similar case, The Intellectual Property High Court ruled that a hand-drawn copy of an old line drawing with minor modifications could not attract copyright as derivative work because of lack of creativity. [1] And The Supreme Court did not admit owner to exercise of Copyright.[18]
Netherlands
English: "The expiry of the term of protection for works of visual art means that these works become part of the public domain. Those works may be freely reused. Article 14 of the Directive confirms this and provides that reproductions of works of visual art are not protected by copyright. This is only different if the reproductions as such also result in a work in the copyright sense of the word. For this it is necessary that there is an original creation that bears the personal stamp of the maker. This will generally not be the case for faithful reproductions, such as a photo of a painting for a postcard. For cultural heritage institutions, copyright does not prevent the sale of such postcards. The dissemination of faithful reproductions of works in the public domain contributes to the access and promotion of culture. Article 14 is fully in line with applicable law and therefore does not require transposition."
Nordic Countries
Photographic reproductions from these countries enter the public domain when both the copyrights on the original and this neighboring right on the photograph have expired. Recent photos are thus never OK, but older ones may be (if the original is in the public domain). These countries had until the 1990s shorter terms for this photography right.
Iceland: OK before January 1, 1973. Iceland has a term of 50 years since creation.
Norway: OK before January 1, 1970 if the photographer died before January 1, 1980 Norway had a term of 25 years since creation (but at least 15 years after the death of the photographer) until 1995. If the photographer died later or the picture was taken later, the current terms apply.
Sweden: OK before January 1, 1969. Sweden had a term of 25 years until 1994.
Finland: OK if created before January 1, 1973 or published before January 1, 1966. Finland had a term of 25 years since the year of first publication until 1991.
Denmark: OK before January 1, 1970. Denmark had a term of 25 years until 1995. (§91, 5 in the current law).
Poland
OK Faithful reproductions of two-dimensional works of art are not eligible for copyright themselves under Polish law, because they are not considered as individual creative activity.
Romania
OK Copyright is granted only to "any changes to an artistic work which require creative intellectual work", while "non-essential changes, additions, cuttings or adaptations, as well as the correction of a work or a collection do not extend their copyright term".[25]
Slovakia
Probably OK. Copyright on photographs requires "author’s own intellectual creation" (Act No. 185/2015, Section 3(1)(5)):[26]
Spain
OK before 1998 / Not OK otherwise. The Ley de propiedad intelectual (LPI 1996)[27] provides 25 years of copyright to "mere photographs" or similar reproductions, beginning on 1 January of the year following creation.
Switzerland
OK In Switzerland, photographs must exhibit an "individual expression of thought" to be subject to copyright. According to applicable Supreme Court case law[28] this requires that the photograph is given an individual character e.g. by the choice of framing, the use of camera settings or the editing of the image. This means that faithful reproduction photographs are not subject to copyright in Switzerland. The State Library of Lucerne also opines in that sense, saying that photographic reproductions of documents from libraries were not "works" in the sense of the copyright law and thus not copyrighted.
Taiwan
in the case of an artistic work, a plate maker who photocopies, prints, or uses a similar method of reproduction and first publishes such reproduction based on such original artistic work, and duly records it in accordance with this Act, shall have the exclusive right to photocopy, print, or use similar methods of reproduction based on the plate."
United Kingdom / UK / Inconclusive.
The courts in the UK traditionally applied a very low test for photographic originality, based on the "skill and labour" required to capture the image, and it was long thought that there would most likely be sufficient originality in a photographer's selection of lighting arrangements, exposure, filters and so on for a new copyright to be generated. However, the 2009 Infopaqdecision of the CJEU defined a different test, namely "Is it the author’s own intellectual creation?"
In November 2015, the UK IPO updated its copyright advice notice[31] to include the following:
Are digitised copies of older images protected by copyright?
Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.
However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.
United States / USA
OK Under the rule in Bridgeman Art Library v. Corel Corporation, a mere 'record' photograph of a 2D work of art (i.e. a photograph which is an as-accurate-as-possible copy of the original) acquires no copyright protection.
The U.S. case of Bridgeman v. Corel (1999)
In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented. While the New York District Court does not hold jurisdiction over the whole US, other district courts have generally relied on and expanded on this decision.
The rule therefore excludes from copyright protection photographs which are intended to be no more than a faithful reproduction of a two- dimensional work of art such as a painting. If only technical expertise is involved (to take a faithful and unimaginative picture), the photograph acquires no copyright protection in its own right. The case extends the rule that scans and photocopies of two-dimensional originals are not copyrightable to cover in addition faithful reproductions created in the U.S. through photography.
As a result of this case, anyone taking in the U.S. a mere 'record' photograph of a 2D work of art—plain, full-framed—gets no copyright protection for the photograph. If the original work of art is sufficiently old that its own copyright has expired, the photograph itself will then be free for use in the U.S.
I would appreciate knowing under what section of the copyright law you are declining this image, Thank you, Sharon Richards
0 -
To clarify - are you trying to upload these images to Memories on the FamilySearch Family Tree?
If that is the case, the initial review is made by a computer, not a person. Have you replied to the email informing you the image could not be posted and asked for a human review?
1
