Fair Use of Photos as a Derivative WorkMarketing and Fair UseWhat would constitute Fair Use in a work that is derivative of a parody?Derivative works vs original workLarge YouTuber: Copyright Lawsuit vs Fair UseFair use of TweetsCan cropping a sprite invalidate copyright?Would fair use apply to the usage of Pac-Man within a QR code?Can ASCII representations of copyrighted images be considered transformative work and fall under fair use?Who is liable for copyright infringement in an “unofficial book” with copyrighted images, the publisher or the author?Doubt on legality of image modification

Can 35 mm film which went through a washing machine still be developed?

How to accompany with piano in latin music when given only chords?

How do we know for sure a transliteration is lossless?

Would houseruling two or more instances of resistance to the same element as immunity be overly unbalanced?

The answer is the same (tricky puzzle!)

i-AdjectiveのNoun possible in special cases?

Object Oriented Design: Where to place behavior that pertains to more than one type of object?

How to prove (A v B), (A → C), (B → D) therefore (C v D)

How to tension rope between two trees?

Is insurance company’s preferred auto shop biased?

What is the origin of the minced oath “Jiminy”?

Can an animal produce milk all the time?

Conveying the idea of "down the road" (i.e. in the future)

Using 4K Skyrim Textures when running 1920 x 1080 display resolution?

What are the limits on an impeached and not convicted president?

What are some ways to season that don't rely on garlic and onions?

Found a minor bug, affecting 1% of users. What should QA do?

As a girl, how can I voice male characters effectively?

Where does the image of a data connector as a sharp metal spike originate from?

How come the Russian cognate for the Czech word "čerstvý" (fresh) means entirely the opposite thing (stale)?

Has Boris Johnson ever referred to any of his opponents as "traitors"?

Brand new MacBook Pro says "Service Battery"

How are characteristic classes morphisms of infinite loop spaces? (if they are)

Search for something difficult to count/estimate



Fair Use of Photos as a Derivative Work


Marketing and Fair UseWhat would constitute Fair Use in a work that is derivative of a parody?Derivative works vs original workLarge YouTuber: Copyright Lawsuit vs Fair UseFair use of TweetsCan cropping a sprite invalidate copyright?Would fair use apply to the usage of Pac-Man within a QR code?Can ASCII representations of copyrighted images be considered transformative work and fall under fair use?Who is liable for copyright infringement in an “unofficial book” with copyrighted images, the publisher or the author?Doubt on legality of image modification






.everyoneloves__top-leaderboard:empty,.everyoneloves__mid-leaderboard:empty,.everyoneloves__bot-mid-leaderboard:empty
margin-bottom:0;

.everyonelovesstackoverflowposition:absolute;height:1px;width:1px;opacity:0;top:0;left:0;pointer-events:none;








1















This question comes specifically from a particular example. Within Ethics for the Information Age (Quinn), 5th Edition, there is a chapter on Intellectual Property, and while most of it is well-explained, this section on fair use confuses me:




Fair use Example #2



An art professor takes slide photographs of a number of paintings reproduced in
a book about Renaissance artists. She uses the slides in her class lectures.




In this example, it is ruled that the professor's slides are most likely not fair use, because




even if the original painting is in the public domain, the photograph of the painting appearing in the art book is probably copyrighted.




This leads me to my question: How can a photograph of a painting be a derivative work, and not a reproduction? As far as I can reason, there is absolutely nothing being added to the art, except possibly some filters or lighting differences, but without receiving any specifics to that end, I find this difficult to rationalize.



I'm not arguing whether photography in general is copyrightable, naturally, but I am questioning how a photo taken of a public domain piece, without modification and presumably appearing almost identical to the original work, can be considered derivative.










share|improve this question







New contributor



Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.



























    1















    This question comes specifically from a particular example. Within Ethics for the Information Age (Quinn), 5th Edition, there is a chapter on Intellectual Property, and while most of it is well-explained, this section on fair use confuses me:




    Fair use Example #2



    An art professor takes slide photographs of a number of paintings reproduced in
    a book about Renaissance artists. She uses the slides in her class lectures.




    In this example, it is ruled that the professor's slides are most likely not fair use, because




    even if the original painting is in the public domain, the photograph of the painting appearing in the art book is probably copyrighted.




    This leads me to my question: How can a photograph of a painting be a derivative work, and not a reproduction? As far as I can reason, there is absolutely nothing being added to the art, except possibly some filters or lighting differences, but without receiving any specifics to that end, I find this difficult to rationalize.



    I'm not arguing whether photography in general is copyrightable, naturally, but I am questioning how a photo taken of a public domain piece, without modification and presumably appearing almost identical to the original work, can be considered derivative.










    share|improve this question







    New contributor



    Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
    Check out our Code of Conduct.























      1












      1








      1








      This question comes specifically from a particular example. Within Ethics for the Information Age (Quinn), 5th Edition, there is a chapter on Intellectual Property, and while most of it is well-explained, this section on fair use confuses me:




      Fair use Example #2



      An art professor takes slide photographs of a number of paintings reproduced in
      a book about Renaissance artists. She uses the slides in her class lectures.




      In this example, it is ruled that the professor's slides are most likely not fair use, because




      even if the original painting is in the public domain, the photograph of the painting appearing in the art book is probably copyrighted.




      This leads me to my question: How can a photograph of a painting be a derivative work, and not a reproduction? As far as I can reason, there is absolutely nothing being added to the art, except possibly some filters or lighting differences, but without receiving any specifics to that end, I find this difficult to rationalize.



      I'm not arguing whether photography in general is copyrightable, naturally, but I am questioning how a photo taken of a public domain piece, without modification and presumably appearing almost identical to the original work, can be considered derivative.










      share|improve this question







      New contributor



      Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
      Check out our Code of Conduct.











      This question comes specifically from a particular example. Within Ethics for the Information Age (Quinn), 5th Edition, there is a chapter on Intellectual Property, and while most of it is well-explained, this section on fair use confuses me:




      Fair use Example #2



      An art professor takes slide photographs of a number of paintings reproduced in
      a book about Renaissance artists. She uses the slides in her class lectures.




      In this example, it is ruled that the professor's slides are most likely not fair use, because




      even if the original painting is in the public domain, the photograph of the painting appearing in the art book is probably copyrighted.




      This leads me to my question: How can a photograph of a painting be a derivative work, and not a reproduction? As far as I can reason, there is absolutely nothing being added to the art, except possibly some filters or lighting differences, but without receiving any specifics to that end, I find this difficult to rationalize.



      I'm not arguing whether photography in general is copyrightable, naturally, but I am questioning how a photo taken of a public domain piece, without modification and presumably appearing almost identical to the original work, can be considered derivative.







      fair-use photography derivative-work






      share|improve this question







      New contributor



      Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
      Check out our Code of Conduct.










      share|improve this question







      New contributor



      Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
      Check out our Code of Conduct.








      share|improve this question




      share|improve this question






      New contributor



      Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
      Check out our Code of Conduct.








      asked 8 hours ago









      Seymour GuadoSeymour Guado

      1084 bronze badges




      1084 bronze badges




      New contributor



      Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
      Check out our Code of Conduct.




      New contributor




      Seymour Guado is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
      Check out our Code of Conduct.

























          1 Answer
          1






          active

          oldest

          votes


















          3
















          If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under.



          However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights.



          One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is.



          Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection.



          If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same.



          Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law.



          Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues.



          It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright.






          share|improve this answer






















          • 1





            A wonderful answer. Thank you for the explanation and examples of precedent, David.

            – Seymour Guado
            6 hours ago












          Your Answer








          StackExchange.ready(function()
          var channelOptions =
          tags: "".split(" "),
          id: "617"
          ;
          initTagRenderer("".split(" "), "".split(" "), channelOptions);

          StackExchange.using("externalEditor", function()
          // Have to fire editor after snippets, if snippets enabled
          if (StackExchange.settings.snippets.snippetsEnabled)
          StackExchange.using("snippets", function()
          createEditor();
          );

          else
          createEditor();

          );

          function createEditor()
          StackExchange.prepareEditor(
          heartbeatType: 'answer',
          autoActivateHeartbeat: false,
          convertImagesToLinks: false,
          noModals: true,
          showLowRepImageUploadWarning: true,
          reputationToPostImages: null,
          bindNavPrevention: true,
          postfix: "",
          imageUploader:
          brandingHtml: "Powered by u003ca class="icon-imgur-white" href="https://imgur.com/"u003eu003c/au003e",
          contentPolicyHtml: "User contributions licensed under u003ca href="https://creativecommons.org/licenses/by-sa/4.0/"u003ecc by-sa 4.0 with attribution requiredu003c/au003e u003ca href="https://stackoverflow.com/legal/content-policy"u003e(content policy)u003c/au003e",
          allowUrls: true
          ,
          noCode: true, onDemand: true,
          discardSelector: ".discard-answer"
          ,immediatelyShowMarkdownHelp:true
          );



          );







          Seymour Guado is a new contributor. Be nice, and check out our Code of Conduct.









          draft saved

          draft discarded
















          StackExchange.ready(
          function ()
          StackExchange.openid.initPostLogin('.new-post-login', 'https%3a%2f%2flaw.stackexchange.com%2fquestions%2f45091%2ffair-use-of-photos-as-a-derivative-work%23new-answer', 'question_page');

          );

          Post as a guest















          Required, but never shown

























          1 Answer
          1






          active

          oldest

          votes








          1 Answer
          1






          active

          oldest

          votes









          active

          oldest

          votes






          active

          oldest

          votes









          3
















          If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under.



          However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights.



          One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is.



          Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection.



          If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same.



          Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law.



          Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues.



          It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright.






          share|improve this answer






















          • 1





            A wonderful answer. Thank you for the explanation and examples of precedent, David.

            – Seymour Guado
            6 hours ago















          3
















          If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under.



          However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights.



          One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is.



          Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection.



          If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same.



          Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law.



          Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues.



          It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright.






          share|improve this answer






















          • 1





            A wonderful answer. Thank you for the explanation and examples of precedent, David.

            – Seymour Guado
            6 hours ago













          3














          3










          3









          If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under.



          However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights.



          One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is.



          Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection.



          If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same.



          Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law.



          Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues.



          It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright.






          share|improve this answer















          If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under.



          However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights.



          One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is.



          Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection.



          If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same.



          Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law.



          Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues.



          It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright.







          share|improve this answer














          share|improve this answer



          share|improve this answer








          edited 6 hours ago

























          answered 7 hours ago









          David SiegelDavid Siegel

          27.2k2 gold badges46 silver badges95 bronze badges




          27.2k2 gold badges46 silver badges95 bronze badges










          • 1





            A wonderful answer. Thank you for the explanation and examples of precedent, David.

            – Seymour Guado
            6 hours ago












          • 1





            A wonderful answer. Thank you for the explanation and examples of precedent, David.

            – Seymour Guado
            6 hours ago







          1




          1





          A wonderful answer. Thank you for the explanation and examples of precedent, David.

          – Seymour Guado
          6 hours ago





          A wonderful answer. Thank you for the explanation and examples of precedent, David.

          – Seymour Guado
          6 hours ago











          Seymour Guado is a new contributor. Be nice, and check out our Code of Conduct.









          draft saved

          draft discarded

















          Seymour Guado is a new contributor. Be nice, and check out our Code of Conduct.












          Seymour Guado is a new contributor. Be nice, and check out our Code of Conduct.











          Seymour Guado is a new contributor. Be nice, and check out our Code of Conduct.














          Thanks for contributing an answer to Law Stack Exchange!


          • Please be sure to answer the question. Provide details and share your research!

          But avoid


          • Asking for help, clarification, or responding to other answers.

          • Making statements based on opinion; back them up with references or personal experience.

          To learn more, see our tips on writing great answers.




          draft saved


          draft discarded














          StackExchange.ready(
          function ()
          StackExchange.openid.initPostLogin('.new-post-login', 'https%3a%2f%2flaw.stackexchange.com%2fquestions%2f45091%2ffair-use-of-photos-as-a-derivative-work%23new-answer', 'question_page');

          );

          Post as a guest















          Required, but never shown





















































          Required, but never shown














          Required, but never shown












          Required, but never shown







          Required, but never shown

































          Required, but never shown














          Required, but never shown












          Required, but never shown







          Required, but never shown







          Popular posts from this blog

          Invision Community Contents History See also References External links Navigation menuProprietaryinvisioncommunity.comIPS Community ForumsIPS Community Forumsthis blog entry"License Changes, IP.Board 3.4, and the Future""Interview -- Matt Mecham of Ibforums""CEO Invision Power Board, Matt Mecham Is a Liar, Thief!"IPB License Explanation 1.3, 1.3.1, 2.0, and 2.1ArchivedSecurity Fixes, Updates And Enhancements For IPB 1.3.1Archived"New Demo Accounts - Invision Power Services"the original"New Default Skin"the original"Invision Power Board 3.0.0 and Applications Released"the original"Archived copy"the original"Perpetual licenses being done away with""Release Notes - Invision Power Services""Introducing: IPS Community Suite 4!"Invision Community Release Notes

          Canceling a color specificationRandomly assigning color to Graphics3D objects?Default color for Filling in Mathematica 9Coloring specific elements of sets with a prime modified order in an array plotHow to pick a color differing significantly from the colors already in a given color list?Detection of the text colorColor numbers based on their valueCan color schemes for use with ColorData include opacity specification?My dynamic color schemes

          Ласкавець круглолистий Зміст Опис | Поширення | Галерея | Примітки | Посилання | Навігаційне меню58171138361-22960890446Bupleurum rotundifoliumEuro+Med PlantbasePlants of the World Online — Kew ScienceGermplasm Resources Information Network (GRIN)Ласкавецькн. VI : Літери Ком — Левиправивши або дописавши її