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.
--
Ilmari Karonen