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Can I put an old painting on the cover of my book without violating the law?

AFAIK the copyright for a painting expires after 70 years. Hence, if a painting was created in 1874 and 70 years expired in 1944, it should be legal to put in on a cover of a book to appear in 2014.

Right?

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    As said below, it's death plus 70 years, not just 70 years. So, your book, if you published it today, will fall into public domain not 70 years from today, but 70 years after your death. – Jürgen A. Erhard Mar 6 '14 at 15:13
  • The good news is that if it's cleared to appear on Wikipedia/Wikimedia, it's in the public domain. Check the legal page for it: en.wikipedia.org/wiki/Proserpine_%28Rossetti_painting%29#/media/…Proserpine-_Google_Art_Project.jpg – idiotprogrammer Jan 12 '17 at 3:26
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The copyright may have expired after 70 years. But, depending on the law of the relevant country, the owner of the painting (or any other object) may have the right to forbid the commercial use of reproductions of his property.

Similar to a "model release", with which a human model allows a photographer the usage of her likeness, there is a "property release" for photos made on or of someone's property. Here is the one from Corbis: http://studioplus.corbis.com/InfoPlus/Downloadable_Documents.aspx?secure=guest (scroll down and select your language).


In their gallery rules, published on their website, the Tate states that:

Photography in the main galleries is allowed for personal, non-commercial purposes only.

This means that any image (= photographic reproduction) you might grab from the web was either made for non-commercial use (scholarly publication) or for a specific commercial use (excluding yours).

If you want to use an image (= photo) of one of the paintings in the collection of the Tate commercially, you must use their image licensing service at www.tate-images.com, which will also provide you with an image file you can use in the publishing process. If you register you can calculate the price for your usage.


I'm not a lawyer, and this is not legal advice.

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  • My book will appear in Russia. The painting I'm talking about is Rosetti's "Proserpine", which is currently located in the Tate Britain museum. Which authority can tell me whether I can use that painting on the cover of my book in Russia or not? – user6696 Jan 12 '14 at 17:05
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    Personally, I think this is a giant rip-off, allowing copyright to last indefinitely. Nevertheless, I believe @what is correct. However, if you can find a book older than 70 years which contains a photograph of the painting, then that photograph should be out of copyright. But IANAL. – dmm Jan 13 '14 at 6:13
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    @dmm I believe you would need a photograph that was made before the current owner came into ownership, and by a photographer who is dead more than 70 years. I'm not sure if the quality would be good enough for a book cover, though. Basically, I'd check with a laywer, if the Tate's licensing fees were higher than the cost of a lawyer (Germany: around 150 Euro). Or just pay those licensing fees, because after all the Tate preserved that painting, and I'm grateful that I can still view it and would like to contribute to that effort. – user5645 Jan 13 '14 at 10:53
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    @dmm Copyright laws were developed to prevent rip-offs, not the other way around. I am surprised there are expiration dates for the rights to a work of art. – Lew Jan 11 '17 at 13:52
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    @DP_ "Depending on the law of the relevant country", anything is possible, such as jailing you for writing a book. But such laws are usually enforceable only within the relevant country. And since the OP did not specify the country, there is nothing to be said, other than general rules implied by international copyright treaties in most countries. When selling entrance tickets a museum may forbid you to take pictures on the premises, or limit their usage. Abusing this may be a contract violation, but not a copyright violation. Such prohibition does not apply to copies obtained otherwise. – babou Sep 20 '18 at 23:07
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The answer of @what is not quite correct, though his comment contradicting his own answer is. But I realized that they were the same person only after writing this answer. I will still include it as it may possibly clarify the logic of this.

Copyright last up to 70 years post mortem auctoris (that means "after the author's death", but Latin is so chic).

Regarding your painting, the painter was most likely dead before the end of 1943, which puts the painting in the public domain on january 1st 2014. So you are OK.

Actually, my favorite painter, who happens to be Russian, is Wassily Kandinsky who died in december 1944, and will enter the public domain next january.

Checking wikipedia, Dante Gabriel Rossetti died in 1882. So you are pretty safe on that part.

As long as the painting is under copyright, you cannot use publicly without permission any copy (reproduction) you may own or find. This is true even if you are the actual owner of the original painting. You own the object, not the right to copy it.

If it sits in your living room, you can publish photographs including it only if it is clearly part of the surrounding rather than a major component of the photograph.

My institute could not publish photos of its main building, because they had forgotten to include that right in the contract with the architect.

When the work enters the public domain, these restrictions fall. The owner may have the right to forbid people to take photograph of his property, but cannot forbid using existing copies, or making secondary copies from them. There is ownership, but no longer a copyright. Pretty logical, whether you like it or not.

In principle, ownership of art works has nothing to do with copyright, though Europe has included one aspect in its copyright legislation with the so-called droit de suite. There are a few other cases where a copyright legislation can concern ownership; they are usually related to moral rights, which may have no time limit. So whether the owner can forbid you to make copies of his property is a matter of local legislation.

It is quite possible that using a picture of a painting illegally taken in Tate Gallery would be illegal in the UK but legal in Russia. And I have no idea whether Tate would be able to sue you when you come to UK if they cannot prove you were the one who took the picture.

However, you have to be careful. If a reproduction of the painting has been made by a professional with specific care, he can claim that his copy is an original work ... as a particularly good copy of the painting, and consequently claim a copyright on his copy. This is of course disputable in court, as he has to show that his own creativity shows in the quality of the photo, that it is an artwork on its own, that other people would have done it differently. Courts may take it or leave it. Copyright is supposed to protect only original work, and a photocopy of a work is in no way original work.

Gallery claims over reproduction rights of the (average quality) copies they sell are sometimes very debatable ... but who wants to go to court.

IANAL - not a lawyer - this is no advice

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  • There was a comment starting with: "Commercially publishing that photograph you took in the Tate in Russia would probably still be a ..." but the comment was erased. You may notice I used the conditional, meaning that I was not sure of the actual situation. Taking pictures of a public domain work is unlikely to qualify as theft. This is likely to be an area where laws vary widely. But I am no expert on this. BTW Is that why my answer was downvoted? Downvoting without explanation is useless to everyone. It does not even get the error corrected, if there is one. – babou Feb 15 '14 at 10:43
  • "My institute could not publish photos of its main building, because they had forgotten to include that right in the contract with the architect." -- architects frequently make this claim, and a lot of people seem to take their word for it, but in most situations and in most countries such claims are nonsense; eg. in the US "The copyright in an architectural work ... does not include the right to prevent the making, distributing of photographs, ... of the work, if it is located in or ordinarily visible from a public place." – Jules Nov 19 '18 at 3:57
  • As to whether "If a reproduction of the painting has been made by a professional with specific care, he can claim that his copy is an original work" in the UK or EU, the analysis in this journal article seems to apply -- which is to say, almost certainly they would have no legal leg to stand on. The gallery may be able to sue the photographer for breach of contract, but they would almost certainly have to prove that any such breach was intentional, which would be extremely hard to do. – Jules Nov 19 '18 at 4:15
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One thing that I did not see in the few answers I read, in fact I saw wrongly stated, is that a photograph counts as an original work of art. I am not a lawyer, but I work at a law school and am surrounded by lawyers constantly debating arbitrary points all the time, and this came up once a while back. Once the painting is public domain, all reproductions are public domain to my knowledge.

This is the best article I could find to explain this point, though I'm not super happy with the source, but here's this: https://www.huffingtonpost.com/bernard-starr/museum-paintings-copyright_b_1867076.html

This may be a debated legal topic, but from my understanding of copyright law, it wouldn't make any sense for the reproduction to count as a new work. That just wouldn't be in keeping with the way copyright laws have been enforced for years. This is a mostly American perspective though, I can admit that. I hope this helps.

Again, I'm not a lawyer and this is not legal advice.

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This, from my publisher in Palo Alto, CA:

Paintings: pre-1906 = public domain ...and given I worked with my publisher 8 times over a 3 year period, therefore got to know her/legal, inside and out...take it to the bank, and minus everyone else's whereases and therefores. So,

Pollock's work? NOOOOO!!!

Benton's work? NOOOOO!!!

Reconstruction-era woodcuts? Go nuts.

Like that. Use The Great SF Earthquake, as your fault line.

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    Not everyone lives and publishes under US law. – user5645 Jan 11 '17 at 13:00
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In the US for paintings made before 1978, the date of public domain depends on the first date when ANY likeness of the painting was published. https://en.wikipedia.org/wiki/Wikipedia:Public_domain#Artworks

"Published" has been defined in several ways. Here's a good wikipedia summary:

To show that a work was published, one could look for printed works that contained reproductions of the artwork: art prints, art books, a catalogue raisonné of the artist's works, exhibition catalogs, and so on (although it is not clear when publishing a thumbnail constitutes publication of the original work). Reasonable effort should be made to find the earliest publication. If any is found from before 1923, that's good enough and the work is in the public domain. Remember, though, that "publication" means "lawful publication", which implies the consent of the author of the original.

Note that once a painting is in the public domain in the US, any photographs of this same painting published later on would still be public domain -- because such a photograph would be slavish reproduction of the original. https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

For graphic works produced after 1978, different rules apply. Generally it falls into the public domain 70 years after the painter's death.

One final thought. Wikimedia Commons (and wikipedia) are very thorough about clearing images on its websites. Generally any image you find on these sites will have correct labeling about copyright/public domain status. Sometimes the labeling will leave as ambiguous whether it's in the public domain in the USA though.

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