[Commons-l] Are models works or arts ?

[Monahon, Peter B.]

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 at 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