This may not be the best test case.  If they were taken in 1949, then no matter whether they are classified as artistic or not, they were not PD by 1996.  So they had US copyright restored by the URAA http://commons.wikimedia.org/wiki/Template:Not-PD-US-URAA
Best regards,
Toby

On Mon, Jul 29, 2013 at 11:14 PM, David Gerard <dgerard@gmail.com> wrote:
Question regarding shorter copyright terms for some items in one
country. Replies should probably go to wikimedia-l as well.


- d.


---------- Forwarded message ----------
From: Hrafn Malmquist <hrafn.malmquist@gmail.com>
Date: 29 July 2013 13:54
Subject: [Wikimedia-l] Iceland: Country specific copyright issue
regarding artistic photographs
To: wikimedia-l@lists.wikimedia.org


49th Article of the Icelandic Copyright Act states (
http://eng.menntamalaraduneyti.is/media/MRN-pdf/he-Copyright-Act.pdf) :

*Article 49*

*The reproduction of photographs, which do not enjoy the protection of this
Act for works of art as provided for in *

*the second paragraph of Article 1, is prohibited without the consent of
the photographer or the party who has *

*acquired his rights. [Furthermore, the publication of such photographs
without the permission of the rightholder *

*shall be prohibited.]1) If such a photograph is presented to the public on
a commercial basis or for profit the *

*photographer, or the subsequent holder of his rights, shall be entitled to
remuneration. The protection of a *

*photograph in accordance with this paragraph shall apply until [50
years]2) have elapsed from the end of the year *

*in which it was taken.*

*The provisions of Chapter II of this Act shall also apply as appropriate
to the photographs referred to in the first *

*paragraph.*



The second paragraph of the first article referenced provided copyright for
artistic work. It is therefore my understanding that the 49th article is
intended to cover non-artistic photographs.

That begs the question as to how Icelandic courts define artistic
photographs. In a ruling from November 27. 2008 Reykjavķk District Court
found that photographs taken at a public place using a mobile of the movie
director Quentin Tarantino were not artistic. (
http://www.domstolar.is/domaleit/nanar/?ID=E200802042&Domur=2&type=1&Serial=1
)

*It is therefore my contention that non-artistic photographs taken before
January 1. 1963 are in the public domain.*
*
*
I have sought the advice of a lawyer specialising in copyright and he
agrees with this estimate.

I want to put this to the test by taking photographs taken by Ólafur K.
Magnśsson (1926-1997) a photographer for the newspaper Morgunblašiš taken
at riots on March 30th 1949 when the Icelandic parliament voted for Iceland
to be a founding member of NATO. See:
http://www.mbl.is/mm/frettir/myndasyrpa.html?cat_id=4;album=634

It is obviously a central issue whether a photograph is artistic or not.
Should the photos be considered artistic the copyright does not expire
until (1997+70=2067).

I have sent a query to Morgunblašiš, which still holds the photographs, and
the man who takes care of the photographic archive did not agree that the
photos are non-artistic (I suspect this is his personal opinion).

There is little history of contending the 49. article, I believe the
example cited above is the only one (When I contacted the curator of the
Reykjavķk Photographic Museum she had not heard of the 49th article).

So, do I upload to Commons? the Icelandic Wikipedia with a caveat ("This
photo is reproduced under the assumption that the 49th article of the
Copyright Act of 1972 applies")? Both?

Best, Hrafn Malmquist
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