Gregory Maxwell wrote:
On 7/5/05, Theo Clarke <wiki(a)tignosis.com>
wrote:
My understanding from museum and gallery folks is
that the photography is a creative act. This is substantiated by the variations that are
possible in the representation of the object (if only variations of intensity and hue).
[snip]
I'm not aware of how it works around the world, but in the US we are
very generous with extending copyright to photographs and in general
to many non-artistic works which simply required a lot of effort to
produce.
And archival grade photography certainly does require a lot of effort
to produce: There are several interacting axis of decision on which a
compromise must be struck, mostly involving lighting. In general
lighting which operates efficiently enough to produce sufficient light
generally tends to only operate at a few wavelegnths. Depending on the
media used in the art this can cause a dramatically incorrect
rendition of the colors. So the photographer is often left trying to
fix these compromises with their choice in film and the channel gain
settings on the digital rig. It often requires specific knowledge of
the behavior of the paints in use to get it right.
In short, don't be so quick to discount the work. If we can grant
copyright on any work which is purely function (as is some software),
then there is no rational reason that copyright can not equally be
extended to an archival grade photograph.
The claim that the photograph is of archival grade is a question of fact
that would need to be proven in court. In a large number of situations
the quality of photographic paper and inks may be far more relevant that
the photographer's professional qualifications. Let's not inflate the
role of professional photographers, when the work of a reasonably
competent amateur would have sufficed for our purposes. The work of
amateur winemakers can be justt as good as anything that might be bought
from a store shelf.
Our interest is in the information contained in the ancient manuscript.
That information may involve more than just the words as a modern person
would perceive them. To a paleographer the original handwriting itself
will be the basis of interest.
As far as I can tell this position is strongly
supported by caselaw in
the US, and I think that it would be a fair position on Wikipedia to
make an effort to preferentially make use of made-by-wikipedian and
truly PD photographs of PD artwork when such alternatives are
available.
That said, the problem is big enough that it would be unreasonable to
try to make a full correction at this time. I think we just need to
start with the position that we prefer works made by wikipedians and
will replace works not made by wikipedians with works by wikipedians
as such choices come along.
I have no difficulty in agreeing that a photograph by a Wikipedian is
preferable in most cases. It is the most effective way of avoiding the
problems that we have been discussiong. At the same time copyright law
cannot be used to keep information in otherwise public domain material
from the public. If the copyright claimant is concerned about the
copyrights of his photographs, he would do well to allow a Wikipedian
access to the original material for the purpose of making our own
photographs.
It is important to remember the significance of the effect on the
copyright holder's market in establishing whether there is fair use. If
there is no market the presumption of fair use becomes much stronger.
Ec