4 ms·

I definitely do not think that finding the film is enough to stake a claim this broad. In the absence of case law, I wouldn't be so sure. In the US there was

by nkurz 12y ago

I definitely do not think that finding the film is enough to stake a claim this broad. In the absence of case law, I wouldn't be so sure. In the US there was a case that was decided last year that might imply otherwise. A somewhat "famous artist" (Richard Prince) used a photo by a relatively "unknown photographer" (Patrick Cariou) and "transformed" it by printing it much larger, splotching the subjects eyes with paint, and superimposing a guitar: http://newsgrist.typepad.com/.a/6a00d8341c66f153ef01157010d2a5970b-500wi http://newsgrist.typepad.com/.a/6a00d8341c66f153ef01157010d2... On appeal, it was concluded that this was fair use, there was no copyright infringement, and that Cariou had no claim against Prince or right to collect royalties: http://www.artinamericamagazine.com/news-features/news/richard-prince-wins-major-victory-in-landmark-copyright-suit/ http://www.artinamericamagazine.com/news-features/news/richa... It's not the same, but I wouldn't want to bet that a court would have decided otherwise if Prince had started with Cariou's negative and had done the work in the darkroom rather than on the easel. Which would imply that it's not even necessary for the film to be lost or abandoned, and that mere access could be enough. And the parties settled the case after the appeal, so there is no chance that the Supreme Court will clarify it further until something else similar makes it to them.

jacquesm 12y ago
That's a major alteration of the source image though, not an all out effort to preserve as much of the original as possible so I don't think that it applies. Interesting case though.
cbd1984 12y ago
That work was creative, as opposed to what the developers did, which was (probably) not creative, and therefore falls under the rubric of there not being a 'sweat of the brow copyright' in American law: https://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright https://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Bro... > Work performed on a public domain item, known as sweat of the brow, does not result in a new copyright. This is the judgment of Project Gutenberg's copyright lawyers, and is founded in a study of case law in the United States. This is founded in the notion of authorship, which is a prerequisite for a new copyright. Non-authorship activities do not create a new copyright. Now, they're only talking about public domain works, which these photographs may or may not be (if there was a copyright on them in 1945, for example, it was not renewed in a timely fashion; Night of the Living Dead is public domain because its copyright wasn't renewed, and it's newer than WWII), but I would be completely shocked if this doctrine didn't apply here at all. https://archive.org/details/night_of_the_living_dead https://archive.org/details/night_of_the_living_dead
- pbhjpbhj 12y ago
  http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.ht... Bridgeman Art Library v Corel Corp is the most recent caselaw I know on this and judges that faithful reproduction doesn't acquire a new copyright. However, the case in hand is transformative to some degree, it is not an unexposed negative that is being reproduced - I think a new right could well be established in the work (the photos each themselves) as the [manual] production from negatives is not merely mechanical but has a [small] degree of creative input. http://lawclanger.blogspot.co.uk/2009/07/its-not-often-that-copyright-cases-get.html http://lawclanger.blogspot.co.uk/2009/07/its-not-often-that-... addresses the last relevant trial, National Portrait Gallery vs Wikipedia, I can recall from the UK [and mentions Bridgeman in passing]. From what I can establish NPG came to an agreement out of court with Wikipedia and did not prosecute the alleged tortuous infringement - NPG instead made lots of images available for free and started asking for donations. This suggests that NPG found no merit in pursuing the claim that the works (expensive hi-def "scans" of old paintings) had copyright. That said I don't think a decision to this end, in the UK, would automatically transfer over and say that the photos here have no new copyright.
  - cbd1984 12y ago
    You're exactly right; this isn't entirely cut-and-dried, and there's a chance a court could rule in a way that would surprise me. However, I don't entirely see how a court could come to the conclusion that merely developing film is creative, and I don't see how a court could rule that a new copyright was created if the work done wasn't creative.
    - pbhjpbhj 12y ago
      Indeed, manual development does have some creative aspects but primarily it's technical IMO. It's a strange thing that it's probably more "creative" than some use of a point-and-click camera, say, but that the camera use would be considered creative enough to have made a work. Agree with you the more I think about it TBH - developing film is not transformative of itself.

by nkurz 12y ago

jacquesm 12y ago

That's a major alteration of the source image though, not an all out effort to preserve as much of the original as possible so I don't think that it applies. Interesting case though.

cbd1984 12y ago

That work was creative, as opposed to what the developers did, which was (probably) not creative, and therefore falls under the rubric of there not being a 'sweat of the brow copyright' in American law: https://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright https://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Bro... > Work performed on a public domain item, known as sweat of the brow, does not result in a new copyright. This is the judgment of Project Gutenberg's copyright lawyers, and is founded in a study of case law in the United States. This is founded in the notion of authorship, which is a prerequisite for a new copyright. Non-authorship activities do not create a new copyright. Now, they're only talking about public domain works, which these photographs may or may not be (if there was a copyright on them in 1945, for example, it was not renewed in a timely fashion; Night of the Living Dead is public domain because its copyright wasn't renewed, and it's newer than WWII), but I would be completely shocked if this doctrine didn't apply here at all. https://archive.org/details/night_of_the_living_dead https://archive.org/details/night_of_the_living_dead

pbhjpbhj 12y ago
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.ht... Bridgeman Art Library v Corel Corp is the most recent caselaw I know on this and judges that faithful reproduction doesn't acquire a new copyright. However, the case in hand is transformative to some degree, it is not an unexposed negative that is being reproduced - I think a new right could well be established in the work (the photos each themselves) as the [manual] production from negatives is not merely mechanical but has a [small] degree of creative input. http://lawclanger.blogspot.co.uk/2009/07/its-not-often-that-copyright-cases-get.html http://lawclanger.blogspot.co.uk/2009/07/its-not-often-that-... addresses the last relevant trial, National Portrait Gallery vs Wikipedia, I can recall from the UK [and mentions Bridgeman in passing]. From what I can establish NPG came to an agreement out of court with Wikipedia and did not prosecute the alleged tortuous infringement - NPG instead made lots of images available for free and started asking for donations. This suggests that NPG found no merit in pursuing the claim that the works (expensive hi-def "scans" of old paintings) had copyright. That said I don't think a decision to this end, in the UK, would automatically transfer over and say that the photos here have no new copyright.
- cbd1984 12y ago
  You're exactly right; this isn't entirely cut-and-dried, and there's a chance a court could rule in a way that would surprise me. However, I don't entirely see how a court could come to the conclusion that merely developing film is creative, and I don't see how a court could rule that a new copyright was created if the work done wasn't creative.
  - pbhjpbhj 12y ago
    Indeed, manual development does have some creative aspects but primarily it's technical IMO. It's a strange thing that it's probably more "creative" than some use of a point-and-click camera, say, but that the camera use would be considered creative enough to have made a work. Agree with you the more I think about it TBH - developing film is not transformative of itself.