By Amanda Green and Alison Davis*
First published in ART+law, December 2000.
MAY I PHOTOGRAPH YOUR PHOTOGRAPH?
You are planning to produce greeting cards, and you see a fantastic reproduction of the Mona Lisa in a coffee-table book. What are the copyright issues involved in reproducing that image to use on your cards? Arts Law has been contacted several times by artists wanting to know what the legal ramifications would be if they wanted to take a photograph of a photograph of an artwork.
In this scenario you need to consider copyright in relation to two separate works;
- The painting of the Mona Lisa
- The photograph of the painting
1. Copyright in the painting of Mona Lisa
The duration of copyright in artistic works lasts for the life of the artist plus fifty years. As Leonardo da Vinci died in the early sixteenth century, copyright in the Mona Lisa has well and truly expired, so the work is now in the public domain. This means that you are free to reproduce it.
If, however, our example had involved a Brett Whitely painting, you would need to obtain permission from Mr Whitely's estate to reproduce the work. This is because copyright still subsists in the painting.
2. Copyright in the photograph of the painting
Irrespective of whether there is copyright in the painting, it is arguable that there is copyright in the photograph of the painting.
Copyright can subsist in a photograph irrespective of its artistic quality as long as the photo is original. So, what is originality in photography?
One view is that authorship correlates to originality. As the author of a photograph is specifically defined in the Copyright Act as "the person who took the photograph", it is arguable that simply taking a photograph is enough to fulfill the requirements of authorship and originality.
There is another view that the author of the work must apply a sufficient degree of skill, labour and judgment to satisfy the test of originality. In Arts Law's opinion, even if a test of 'skill, labour and judgment' is applied, it is arguable that taking a photograph of a painting does satisfy this originality requirement. Factors such as choice of size, angles and light to show off the painting's brush stroke, texture and colour are all important and highly technical considerations. So too is, for example, the possible flaring caused by light reflecting off paintings in a glass case.
There is a strong argument that there is copyright in the photograph of the Mona Lisa. So, before embarking on the production of your greeting cards, Arts Law recommends that you seek permission from the copyright owner in the photographs that you want to reproduce.
*Amanda Greenfield was a Volunteer at Arts Law in 2000 and Alison Davis was a Arts Law Legal Officer in 2000
