Philosophical problem here - any photographer has immediate copyright in even their own latent image. 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 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).
A photograph produces an essentially flat, two dimensional artifact, and therefore cannot reasonably be considered a "copy" of an other non-flat multi-dimensional original artifact, such as a model ship. Therefore, no photograph can be reasonably considered an infringement on whatever copyright the original non-flat artifact creator / owner may claim.
Perhaps photocopying a flat two-dimensional artifact that is subject to another person's copyright is another situation, worthy of exploration in a separate thread.
However, that being said, anyone can sue anyone, but that does not make them right. Anyone can also win a lawsuit, but that also does not make them right. Anyone can appeal that judgment, but that does not make them right. My advice to anyone is to do what you think is right, and then if someone sues you, decide how much you want to fight and win to protect your rights, and everyone else's rights. I do not think anyone else can tell you how much fight you have in you for this battle for photography and photographers to be equivalently, appropriately, and accurately respected by all for our free speech rights and copyrights. Let us know what you decide to do with your original photographic artifacts. It is very generous of you to consider contributing your own copyright artifacts to the commons.
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". We do not have preventive laws, so we are free to make, and publish anything. But, we do have remedial laws, so if someone thinks your creating and publishing actions, after the fact, have deleteriously affected their own life, limb, or property, they may be able to persuade a commonly respected authority (a court?) to instruct you to cease, desist, pay fines and remuneration, and even arrest and imprison you! Anything preemptive, however, is censorship, and interference with everyone's free speech rights and copyright. They have a right to make an original model ship without asking anyone's permission; you have a right to make an original photograph without asking anyone's permission. However, society is complex, and it looks like considerate behavior on your part to ask before taking certain actions. Regardless of thorough and well based advice, any actions you tale may be the basis for someone else to challenge you, no matter how careful you are, whether they (or you) be right or wrong! Welcome to the free world!
-----Original Message----- Date: Tue, 6 Nov 2007 11:20:03 +0100 From: "Rama Rama" ramaneko@gmail.com Subject: [Commons-l] Are models works or arts ?
Hello,
a while ago, I was in Paris to photograph the Naval Museum. They have
models of ships, which can be either
- ancient arsenal models (at the time a scale model was considered to
be part of the documentation of a ship, along with the plans), but also
- modern models of modern ships, and even, more treacherously,
- modern models of ancient ships
I'd like to have an educated opinion on what constitutes a work of art
in this domain. We have quite a few photographs of recent scale models like http://commons.wikimedia.org/wiki/Image:Croiseur-Colbert-p1000458.jpg
or
http://commons.wikimedia.org/wiki/Image:LNG_tanker_model.jpg
Some of the recent models are credited to their authors as if they
were sculptures, so there might be a strong case to consider them as original, copyrighted works of art whose photographs cannot be photographed freely.
I have quite a few such images in my pipeline, I'd be glad to know
what to do with them.
-- Rama
Philosophical problem here - any photographer has immediate copyright in even their own latent image. 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 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).
Philosopical problems aside, copyright law isn't only about the right to copy. From Wikipedia:
"Several exclusive rights typically attach to the holder of a copyright: *to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies) *to import or export the work *to create derivative works (works that adapt the original work) *to perform or display the work publicly *to sell or assign these rights to others *to transmit or display by means of digital audio transmission (XM Satellite Radio, Sirius)"
The original question is, however, interesting.
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...
2007/11/6, Alex Nordstrom lx@se.linux.org:
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...
However, I think that we should cut ourselves *some* slack in the depiction of copyrighted works. Very little can be photographed otherwise - a car or a piece of technical apparatus is designed, and thus copyrighted, and even photographing a person would be problematic, as you'll have to reckon with their clothing designer. Thus, allowing some depictions of copyrighted works should be allowable. On the other hand, there are also objects that we don't allow to be shown on pictures on commons, in particular sculpture. Maybe if we realize what the reason is to treat these differently (and I think we rightly do), it is easier to decide on which side scale models fall.
On 06/11/2007, Andre Engels andreengels@gmail.com wrote:
However, I think that we should cut ourselves *some* slack in the depiction of copyrighted works. Very little can be photographed otherwise - a car or a piece of technical apparatus is designed, and thus copyrighted, and even photographing a person would be problematic, as you'll have to reckon with their clothing designer. Thus, allowing some depictions of copyrighted works should be allowable. On the other hand, there are also objects that we don't allow to be shown on pictures on commons, in particular sculpture. Maybe if we realize what the reason is to treat these differently (and I think we rightly do), it is easier to decide on which side scale models fall.
This is where the UK's rather liberal FOB laws come in handy.
2007/11/7, geni geniice@gmail.com:
On 06/11/2007, Andre Engels andreengels@gmail.com wrote:
However, I think that we should cut ourselves *some* slack in the depiction of copyrighted works. Very little can be photographed otherwise - a car or a piece of technical apparatus is designed, and thus copyrighted, and even photographing a person would be problematic, as you'll have to reckon with their clothing designer. Thus, allowing some depictions of copyrighted works should be allowable. On the other hand, there are also objects that we don't allow to be shown on pictures on commons, in particular sculpture. Maybe if we realize what the reason is to treat these differently (and I think we rightly do), it is easier to decide on which side scale models fall.
This is where the UK's rather liberal FOB laws come in handy.
FOB? What's FOB if I may ask?
On 07/11/2007, Andre Engels andreengels@gmail.com wrote:
This is where the UK's rather liberal FOB laws come in handy.
FOB? What's FOB if I may ask?
[[Commons:Freedom of panorama]]
geni
Wednesday, 7 November 2007, Andre Engels wrote:
However, I think that we should cut ourselves *some* slack in the depiction of copyrighted works. Very little can be photographed otherwise - a car or a piece of technical apparatus is designed, and thus copyrighted,
No; the design of a utilitarian object is subject to a higher threshold of originality and is therefore usually not copyrightable. The design of cars are instead protected by design patents. Things like closeups of hood ornaments or badges, however, are problematic.
and even photographing a person would be problematic, as you'll have to reckon with their clothing designer.
Again, most aspects of clothing design will be dictated by its utilitarian properties. Of course, the print on a t-shirt may be copyrightable, but if the objective is to depict the person, such inclusions are usually secondary and acceptable under the de minimis rule.
2007/11/7, Alex Nordstrom lx@se.linux.org:
Wednesday, 7 November 2007, Andre Engels wrote:
However, I think that we should cut ourselves *some* slack in the depiction of copyrighted works. Very little can be photographed otherwise - a car or a piece of technical apparatus is designed, and thus copyrighted,
No; the design of a utilitarian object is subject to a higher threshold of originality and is therefore usually not copyrightable. The design of cars are instead protected by design patents. Things like closeups of hood ornaments or badges, however, are problematic.
I don't see where you get the rule that there is a 'higher threshold of originality' in these cases. Perhaps in some countries that is true, but I am quite sure it's not in my native Netherlands. The judge there is to decide whether the work has an 'own, original character'. This is not different for industrial design, and indeed industrial design, clothing and furniture are often judged to be copyrighted works.
and even photographing a person would be problematic, as you'll have to reckon with their clothing designer.
Again, most aspects of clothing design will be dictated by its utilitarian properties. Of course, the print on a t-shirt may be copyrightable, but if the objective is to depict the person, such inclusions are usually secondary and acceptable under the de minimis rule.
Again, I disagree with the first part of your statement. Judges have judged that combinations of a certain placement of bags, a type of stitching used etcetera are enough to make a work copyrightable. A de nihilis claim would indeed work in this case, but not in the previous one. Still, in these cases people get sued for making replicas or for objects that are too similar, not for pictures and other similar depictions of them.