[Commons-l] Photos of statues not considered derivatives in the US? (Geoffrey Plourde)

[Howard Cheng]

On Fri, Nov 21, 2008 at 6:29 AM, J JIH <jus168jih at gmail.com> wrote:

> Neither am I your lawyer, but your points are very interesting and
> potentially encouraging. Once the Wikimedia Foundation is able to
> accept your points, recent pictures of very old coins may also become
> acceptable on Commons, similar to mere copies of very old
> 2-dimensional works.
>
> Jusjih
>

Lupo points out a flaw in the argument on my talk page:
http://commons.wikimedia.org/w/index.php?title=User_talk:Howcheng&diff=16179935&oldid=15133401

"Patry argues a fine point whether photos of 3D objects are derivative
works. However, please note that even if such photos are not derivatives,
they are still *copies* of the 3D object. 17 USC
101<http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Section_101>defines
copies as "material objects, other than phonorecords, in which a
work is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device." 17 USC
106(1)<http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Sections_105_and_106>gives
the copyright owner of the 3D object the exclusive right to "to
reproduce the copyrighted work in copies or phonorecords". Hence the
photographer would still need to get the consent of the copyright owner of
the 3D object to even make a photo. Patry acknowledges this himself, read
the comments on the blog article you linked, in particular this
comment<http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.html?showComment=1202223060000#c8671324199605658790>
 <
http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.html?showComment=1202223060000#c8671324199605658790>:
"yes
I think a picture of a copyrighted object is a reproduction of that object".
Also this comment<http://williampatry.blogspot.com/2008/03/photographs-are-not-derivative-works.html?showComment=1206038640000#c6248389526681202947>
 <
http://williampatry.blogspot.com/2008/03/photographs-are-not-derivative-works.html?showComment=1206038640000#c6248389526681202947>
from
a follow-up blog post on this issue: "even though a photograph isn't a
derivative work of the object photographed doesn't mean there might not be
violation of the reproduction right. If I take a photo of a copyrighted work
of art and sell copies, I am violating the reproduction art even though my
photo is not a derivative work of the art work." So, it doesn't matter for
us: for photos of copyrighted artwork, we need the consent of the rights
holder of the artwork shown in the photo (plus that of the photographer, if
he isn't identical to the uploader)"

But hopefully Mike can weigh in on this too.

-h
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