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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?
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 Big Stock Photo.
In their gallery rules, published on their website, the Tate states that:
You can take photos in the gallery unless it is stated otherwise. Photography must be for personal, non-commercial use 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.
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
The question says
the copyright for a painting expires after 70 years
Several answers correct this to "70 years after the death of the artist". That is correct in the UK and many other countries. in the US it is correct for works made after 1978, and some earlier works, but most earlier works are governed by the pre-1976 rules (under the copyright act of 1909) and they are a bit complex. See the famous "Copyright Term and the Public Domain" for details.
However what other answers have not mentioned is that the term varies in different countries, from as short as "life of the author plus 50 years" to as long as "life of the author plus 100 years". life+70 does not apply everywhere.
Several answers have stated that there is no separate copyright on a photo of a public domain work. In the US, the UK, and a number of other countries this is true of a "slavish" or "faithful" reproduction of a flat work, one that attempts to reproduce the original as closely as technology allows, without adding or omitting anything. This is because courts have held that there is no original element in such a reproduction. But if, say, a photo is shown on a stand, or even a 3-d frame is included, there must be a choice of angle, lighting, and the like, and thee have been held to contribute originality and thus a separate copyright. Similarly a photo of a 3D sculpture will usually have a separate copyright, although some courts have held that a detailed digital wiremesh may follow the "faithful reproduction" rule.
If the artist died in 1951 or before the painting would be in the PD in countries with a life+70 rule. If the painting is still under copyright, permission to use it on a cover would be required from the copyright holder. Ownership of a lawful copy or photo of the painting would not, by itself, grant the right to reproduce the painting.
Nor does ownership of the painting itself grant (in most countries) the right to forbid reproductions, although it may allow the owner to forbid access to a person with a camera.
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.
You can find a great answer to this question on the Museum of Modern Arts website, along with a collection of artwork that you can use legally.
They also clearly answer the point on whether a photograph is an original piece of art with links to the legal precedents (spoiler alert! In the EU and UK its not).
They quote Picasso? (debated) “Good artists copy, great artists steal.” Love it!
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.
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.
