On Wed, 04 Aug 2004 11:25:34 -0700 Ray Saintonge <saintonge(a)telus.net>
wrote:
I would be curious to know what policy these galleries
apply with regard to
photography by individual visitors to the gallery.
Probably they either disallow it, or require such photographs to hand over
copyright.
I think too that there is a question of burden of proof
involved. Even if
their principle legal premise is correct they need to prove that our
picture was taken from their website, rather than us needing to prove that
it was from somewhere else. Also if their premise is correct that there is
a copyright in these reproduction, an individual who has taken his own
photograph of a picture would not lose his own copyright on the basis that
he had violated a no-photography rule.
I agree. In general copyright laws are there to protect artistic works. If
publishing the reproduction breaks copyright, then apparently the
reproduction has some artistic merit - which means that it should be
distinguishable from other reproductions of the same work. Thus, if they
have any ground for claiming that the reproductions are copyrighted, they
should be able to say which reproduction's copyright was being infringed
upon.
Then again, I am not a lawyer, and these laws often do not go with my
layman's opinion (in fact, they often go with whoever is willing to pay
their lawyers most, I'm afraid). It would be good to have a real expert
opinion on this.
Another observation that I would make is that any
copyrights to these
reproductions must be determined separately. Without that, how can we know
the copyright date of a specific photograph? Without the copyright date,
how can we know when the copyright expires? What is meant by publishing?
If the same photograph was used to produce a postcard in 1930 the
copyright on that would certainly have expired. Whose courts have
jurisdiction?
That's a very good point too. Let _them_ prove that it is not an image from
before they got the work, or from more than 50/70/100 (depending on country)
years old.
Naturally, taking a stand on this requires more
research than these off the
cuff remarks. Still I think that it is inevitable that as the putative
copyright holders see their revenue streams threatened they will take
action to protect those streams. Sooner or later there will be a legal
confrontation; what we need to know is which actions are worth defending.
I agree. It would also be good to have a discussion going with a gallery
like this - what about offering them a link for each work of 'theirs' that's
on our site. Problem is of course the GNU/FDL - as we do not believe them to
be copyright holders, we cannot require of downstream users to keep that
kind of thing.
Andre Engels