RE: Works of Art and Photographs

["Pilch, Janice T" <pilch@xxxxxxxxxxxx>]

Dear Barbara,

The instructor, as the photographer, holds copyright to the photograph, to the
extent that copyright subsists in the photo. There are questions in the U.S.
as to whether a simple photograph of a painting is original/creative enough to
qualify for copyright:
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm
http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

Even if it does, the instructor would hold the copyright, so there would be no
need to obtain permissions.

The second layer of copyright is that in the painting. Someone would have to
perform the due diligence on the particular work of Picasso to determine the
copyright status of the painting and who owns the copyright--Picasso's estate,
heirs, an assignee, etc.

Both layers of copyright are implicated in posting to the Blackboard course
server, but copyright exceptions may apply: fair use (section 107), or the
TEACH Act (section 110(2)) of the copyright law, depending on what your use
entails. Much will depend on how long you keep the work up, how many
students/classes are involved, the nature of the course, and other factors. If
your institution has a policy on this, you should consult the policy. If your
institution does not have a policy, you and the instructor might want to read
up on fair use and the TEACH Act, and a good place to start is Kenneth Crews's
website at Columbia University, Be sure to look at the Fair Use Checklist:

http://copyright.columbia.edu/copyright/fair-use/practical-applications/posti
ng-course-materials-online/


Without all the specifics, it is impossible for someone on the outside to give
concrete advice, and it's likely that in the end the instructor will have to
think about making a decision on whether to justify this as a fair use. That's
a typical path for this type of situation.

All best,

Janice Pilch



-----Original Message-----
From: Bolko, Barbara [mailto:Barbara.Bolko@xxxxxxxxxxx]
Sent: Friday, July 16, 2010 1:15 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Works of Art and Photographs

Has anyone come across this situation?  If so, would you share the outcome.
Thank you.

Were working with a faculty member who recently went to Paris and took
pictures of famous works at the Louvre, Picassos work to be specific. (She
was allowed to take pictures at them museum.)  She wants to know if there are
any copyright issues with her posting those works onto our Blackboard course
server.  Typically if the instructor owns the work, theres no problem
uploading it to a server.  However, if someone else owns the work, permission
must be granted. So the question is:  who owns the pictureor better, image?
The instructor?  Picasso?

Barbara Bolko, Librarian
Granite State College