Tuesday, 6 November 2007, Monahon, Peter B. wrote:
Philosophical problem here - any photographer has immediate copyright in even their own latent image.
True, but not relevant to the question, since that copyright is not necessarily exclusive. For a photograph which is a derivative work of another copyrighted work, the photographer and the original copyright holder share the copyright of the resulting photograph.
See articles L113-2 and L113-4 of the Intellectual Property Code of France [http://195.83.177.9/code/liste.phtml?lang=uk&c=36&r=2491].
The original model is not being copied. The photographers is creating a new copyright work of their own authorship when the photographer makes a photograph. Photographers do not "take" anything, in this context, they "make" new copyright works of their own authorship at each click of their camera shutter release button! If a photographer were to put down their camera and construct a duplicate model ship, THAT might be copying the original model. Photographing is not copying, in this context.
The photograph *does* constitute a reproduction of the model. See articles L122-3 and L122-4. Article L122-5 §3(d) clearly illustrates that the legislators have considered two-dimensional reproductions of three-dimensional works to be just as much a reproduction as anything else.
The premise below is wrong for non-flat (two dimensional) original works of art (art = artifact, not capital "A" "Art", meaning "expensive stuff in museums", not what we're talking about here).
I'm somewhat puzzled by the distinction you make between artefacts and objects of art. No such distinction is made in copyright law. The distinction that *does* exist is between creative "works of the mind", which are copyrightable, and ordinary utilitarian objects, which are not (because they're outside the scope of copyright law).
If you do conclude that the object being depicted is not copyrightable, then of course it can't be a copyright infringement to take photographs of it for publication. But that makes your entire argument about how photographs of three-dimensional works are not copies a bit redundant. Perhaps you were thinking of how a photograph of a non-copyrightable object protected by a design patent would not infringe on the patent the same way that a three-dimensional copy of the object might be.
<snip>
PS - And never forget the totally unrelated difference between '"making a photograph" and "publishing a photograph". Some people think that if they can successfully sue you for publishing a photograph, then they can also stop you from even making your own photograph in the first place, These are totally different and unrelated areas of law experience - "creating" versus "publishing".
True of course. See article L122-5. But also remember that a photography ban can be a condition of entry to a venue (such as a museum).
Now, to address what I think is the question the original poster was actually asking (as opposed to the question of whether a photograph of a three-dimensional copyrightable work is a derivative work): are model ships works of art...
See http://commons.wikimedia.org/wiki/Commons_talk:Derivative_works#Modell_Recre...