[Commons-l] Are models works or arts ?

[Alex Nordstrom]

Tuesday, 6 November 2007, Monahon, Peter B. wrote:
> Philosophical problem here - any photographer has immediate copyright
> in even their own latent image. 

True, but not relevant to the question, since that copyright is not 
necessarily exclusive. For a photograph which is a derivative work of 
another copyrighted work, the photographer and the original copyright 
holder share the copyright of the resulting photograph.

See articles L113-2 and L113-4 of the Intellectual Property Code of 
France [http://195.83.177.9/code/liste.phtml?lang=uk&c=36&r=2491].

> 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 photograph *does* constitute a reproduction of the model. See 
articles L122-3 and L122-4. Article L122-5 §3(d) clearly illustrates 
that the legislators have considered two-dimensional reproductions of 
three-dimensional works to be just as much a reproduction as anything 
else.

> 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).

I'm somewhat puzzled by the distinction you make between artefacts and 
objects of art. No such distinction is made in copyright law. The 
distinction that *does* exist is between creative "works of the mind", 
which are copyrightable, and ordinary utilitarian objects, which are 
not (because they're outside the scope of copyright law).

If you do conclude that the object being depicted is not copyrightable, 
then of course it can't be a copyright infringement to take photographs 
of it for publication. But that makes your entire argument about how 
photographs of three-dimensional works are not copies a bit redundant. 
Perhaps you were thinking of how a photograph of a non-copyrightable 
object protected by a design patent would not infringe on the patent 
the same way that a three-dimensional copy of the object might be.

<snip>

> 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".

True of course. See article L122-5. But also remember that a photography 
ban can be a condition of entry to a venue (such as a museum).

Now, to address what I think is the question the original poster was 
actually asking (as opposed to the question of whether a photograph of 
a three-dimensional copyrightable work is a derivative work): are model 
ships works of art...

See 
http://commons.wikimedia.org/wiki/Commons_talk:Derivative_works#Modell_Recreations

-- 
Alex Nordstrom
http://commons.wikimedia.org/wiki/User:LX
Please do not CC me in followups; I am subscribed to commons-l.
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