Jay R. Ashworth wrote:
On Wed, Jan 24, 2007 at 05:45:51PM -0500, Anthony wrote:
To use my example, above, my taking a photograph of an artist posing next to his painting does *not*, to me, seem to meet the description there, quoted from the statute, of a derivative work, as it's not *based* on the original painting: he could have been standing next to *anything*.
Whether or not it's a derivative work is largely irrelevant, because a photograph of a painting definitely *is* a copy.
Well, that's largely a strawman, since 3 lines earlier I made it clear that I was *not* discussing merely "a photograph of a painting" in the Bridgeman sense.
The way I see it, Bridgeman vs. Corel is pretty much irrelevant here. A work can be subject to multiple copyright claims. Bridgeman is about whether a person making a copy gets to claim copyright on it. The issue we're discussing is whether the person who made the original gets to enforce their copyright on the derivative work. The two issues are more or less orthogonal -- all the four possible combinations can and do occur.
Examples:
1. Person A paints a picture. Person B scans it. Per Bridgeman, the copyright on the scan belongs to person A only.
2. Person A paints a picture. Person B takes it to their studio and photographs it in a carefully chosen artistic setting. The photograph incorporates creative work by both A (the painting) and B (the scene it is set in), and both thus have copyright on it.
3. Person A paints a picture and makes posters of it. Person B takes a photo of a busy street where one lamppost in the background happens to have one of A's posters glued to it. Since the inclusion of A's picture in the photo is incidental and quite insignificant, it counts as fair use and/or _de minimis_. Even if the photo technically counted as a derivative work (which is a matter of definition), A would not be able to enforce their copyright on it.
4. Person A paints a picture. Person be uses a spectrometer to analyze a spot on the painting and to determine the chemical composition of the paint there. Since the resulting dataset bears no traces of creativity by either A or B, it is ineligible for copyright.