I¹m usually very conservative on this type of issue (siding with copyright
holders) but I agree with Jim 100% and this email does a great job of
clarifying a muddled situation. I think too often Corel is thrown out there
in Fair Use debates but I think is one of the first correct applications of
it that I have seen.
--Guy (En & Commons: Wgfinley)
On 6/4/06 11:22 AM, "Jim" <trodel(a)gmail.com> wrote:
Someone questioned, Bill Alman, the White House
curator who said:
Generally, the portraits are property of the federal government and are in
the public domain. In the case of the White House portraits, the photograph
of the portrait may have copyright restrictions, but that it should be
generally okay to use the images as long as the publisher of the electronic
image is credited.
The problem is that for some reason people in the discussion, are focusing on
the fact that copyright and ownership are seperate rights - and refuse to
acknowledge that the curator was clearly identifying the ownership of both
property rights by saying "the portraits are property of the federal
government [ownership of the portraits] and are in the public domain
[copyright status]."
The curator then showed a very sophisticated understanding of US copyright law
by making a distinction between the copyright in the work itself (which is in
the public domain), and the copyright of a photo which may or may not be
copyrighted depending on your view of the line of reasoning in Bridgeman Art
Library v. Corel Corp.
<http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.> which held
that exact photographic copies of public domain images could not be protected
by copyright because the copies lack originality. Where there is signifant
originality there would be copyright in the photograph seperate from the
portrait.
The curator seems, very wisely, IMHO, to refrain from giving an opinion about
the copyright of any reproductions (photographs) of the portraits while
drawing the attention to the questioner that this could be an issue. He even
very clearly identifies that the only copyright issue in question is whether
one is claimed by the "publisher of the electronic image."
Thus, the portraits themselves being properly commissioned by the US and
having the copyright transferred to the US govt - thus becoming "public
domain" as identified by the curator are public domain works. The only issue
is whether the photo itself is copyrighted.
This is also resolvable in one of 2 ways:
1. Determination that the photos lack sufficient originality, thus the
photographer can not claim copyright in the photo of a public domain work
(following Bridgeman)
2. Assuming that there is sufficient originality, so we need to find the
copyright status of the photo seperate from the one in the portrait:
1. If they are photos posted by the US govt and
copied to wikipedia from
there - then those are clearly in the public domain as a work of the US govt.
2. If the photo was taken by a contributor - then we should refer to his
license in uploading the work.
Personally, my review of the photos in question
indicate that they clearly
fall under the Bridgeman decision and the photographer can not claim a
copyright in them as there is not the sufficient originality by the
photographer
Jim
On 6/3/06, Jimmy Wales <jwales(a)wikia.com> wrote:
> I think there is no easy answer. It would be best to contact the exact
> office or institution which commissioned them and ask for a letter
> clarifying the copyright status.
>
> It is possible that the government purchased both the copyright and the
> physical object, but also possible that the government merely purchased
> the physical object.
>
> Fredrik Josefsson wrote:
>> > This issue has been discussed for a while now. First
>> > on English Wikipedia, now on Commons.
>> >
>> > The discussion on Commons can be found at:
>> >
>>
http://commons.wikimedia.org/wiki/Template:Deletion_requests#Official_painti
>> ngs_held_by_the_U.S._Government
>> <http://commons.wikimedia.org/wiki/Template:Deletion_requests#Official_paint
>> ings_held_by_the_U.S._Government>
>> >
>> > A lengthy debate on English Wikipedia is at:
>> >
>>
http://en.wikipedia.org/wiki/Wikipedia:Possibly_unfree_images/US_government_
>> portraits
>> <http://en.wikipedia.org/wiki/Wikipedia:Possibly_unfree_images/US_government
>> _portraits>
>> >
>> > The debate in short: The paintings are not Work of the
>> > United States Government, they were made by artists on
>> > commission. Can they be used as public domain?
>> >
>> > / Fred