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Photographs of Public Domain Fine Art Paintings - Do They Have Their Own Value?

Updated on September 27, 2013

When we use fine art online, we are not reproducing just the painting, we're reproducing somebody else's photograph of a painting. It's an issue that is complicating international copyright law. A leading argument is (and not everyone or all laws agree) that a photograph of a painting has its own copyright, just like any other photograph would. I've written about this issue in What's the Difference Between a Public Domain Painting and its Image.

I think it's worth discussing whether these photographs do, and should be considered to have, their own value?

I first came across this issue many years ago, pre-internet, as I was tracking down and "clearing" works of fine art for a television documentary. It was a surprise to me that we needed to clear each painting not just once (they weren't all totally in the public domain) but twice, because we needed to pay a license fee to the owners of the photographs of the paintings too. However, this soon made sense. It was a joy to work on this programme. As transparencies of the artwork came in, by post (funny to think of now) from around the world, they were breathtaking. Most of them had been taken with medium format cameras. I think only one was as small as a regular 35mm slide. One of them - I think it was one of Monet's paintings with the woman in white and the parasol - came in as an A4/letter sized transparency. It was enchanting. I had work to do but couldn't help but sit and stare at it for while.

These transparencies were then all filmed individually on 16mm film, and cut into our programme. It was clear that these photographs had been taken with tremendous skill and care, and at no small cost to the galleries and individuals who had arranged for them to be photographed. It was evident why these galleries, who owned the photographs, expected recompense for them.

It's easy to take the images of paintings that we see online for granted. After all, they just look like the paintings themselves. But that's exactly the point. It takes care and skill, and often specialised equipment, to make them look just like the original paintings. By contrast, here is a photo taken from Wikimedia Commons. The painting is in the public domain. It's an old copy of Leonardo's The Last Supper (I've been unable to find the artist - if anyone recognises either the artist or knows the painting and its location, I'd be very glad to know - thank you).

Paintings this old are in the public domain.  Kensplanet was the author and copyright holder of this photograph of the work, but has released it into the public domain also.  This is clearly specified on its WIkimedia Commons page.
Paintings this old are in the public domain. Kensplanet was the author and copyright holder of this photograph of the work, but has released it into the public domain also. This is clearly specified on its WIkimedia Commons page. | Source

The photograph was taken by Kensplanet, who has kindly given it over to the public domain, which means that we can use the photo in any way, and in any format we like. Kensplanet, who rather cutely has filled in the "source" section with "clicked on my camera" is obviously not pretending to be anything other than an amateur photographer. I'm using it in a hub article as an original painting in the public domain, and where the copyright owner of the photograph of the painting has given me permission to do so. We can see the flash on the glass, and a doorway reflected on the right hand side. This is what happens when you snap away at works of fine art. It's why the professionally taken images have more value to us as users than might immediately seem the case. As I say, it's easy to take them for granted.

By contrast, I've included Mark Ewbie's The Last Supper, so that you can enjoy a representation of it in its entirety without any of it being obscured by flash photography. I'm unable to show Leonardo's original fresco work "The Last Supper" here, because although it is, itself, in the public domain, I'm unable to access a digital image of it that I can currently be certain is totally legal (especially uploading from the UK), within my budget for this article.

The Last Stickman Supper © Mark Ewbie, used here with permission, and not to be reused without permission from Mark.
The Last Stickman Supper © Mark Ewbie, used here with permission, and not to be reused without permission from Mark. | Source

So there's no doubt in my mind that photographs of paintings have their own value. They're worth something to us. Those paintings wouldn't be available to us to use and enjoy online at all if they didn't exist, and hadn't been carefully taken.

But does that mean that control of them should stand between us and paintings that are public domain (and so in theory should be free of charge for us to enjoy?) Wikimedia Commons thinks this issue should not stand in the way. Most galleries, and copyright law, particularly outside of the US, disagree.


What do you think should happen with photographs of public domain paintings?

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    • GusTheRedneck profile image

      Gustave Kilthau 

      4 years ago from USA

      Hi Keri (Keri Summers) -

      I am no expert in copyrights or copyright law, but here is my understanding of copyrights to photos of existing artwork. If the owner of an out-of-copyright piece of art has the art on public display and does not restrict the photographing of the art, then the public is free to make photos of the art and do with them as they wish. If the owner of the art does not put the art in public display (for example a museum that has rules against photography of its art properties) then any photography of the art is simple theft (or whatever ownership of something of value provides...) - but it is not violation of a copyright unless that right actually exists - and that depends on many factors, including timing, the statutes, and so forth. If a museum or other owner of an artwork makes or has made a photo of the art, it can certainly copyright the photograph - not the art itself. For example, if someone makes a photograph of a stick, a mouse, a flower, etc., they can copyright the photograph. If they make a picture of a picture (or another photograph to which they hold rights) they can copyright their new picture.

      It is much the same thing as someone preventing a photographer from making a photo of their house. If the photographer can see the house from a public place (sidewalk, airplane...) then the photographer can make photos of the thing. If the storekeeper wants to prevent someone from photographing the inside of the store, that can be done. But photos of the outside of the store? Uh-uh.

      Getting back to that photo of the artwork - If it is otherwise free of copyright and discovered within a copyright article, Website, video, or something else published - you could be OK to re-use the image in "fair use" form, but not otherwise - or you could be plagiarizing the thing if the owner of the photograph of the artwork owned a copyright to it and had not given it over to you in some manner.

      Them's my thoughts. (right or wrong)

      Happy Saturday, Everyone !

      Gus :-)))

    • Keri Summers profile imageAUTHOR

      Keri Summers 

      4 years ago from West of England

      Long overdue thanks for your comments - That Grrl for adding to the debate, and DDE, do you know who was the artist of your painting? I hope you manage to find out more about it.

    • DDE profile image

      Devika Primić 

      5 years ago from Dubrovnik, Croatia

      Interesting I have an old painting but not sure of the value.

    • That Grrl profile image

      Laura Brown 

      6 years ago from Barrie, Ontario, Canada

      I've thought about this before. If the original artist is not getting paid for the original work then why should someone get paid for a photograph copy of the original? Even if the original artist is long dead that does not mean their family is not getting payment from the original works.

      I've taken a photo of a magazine article for my Mother. Instead of paying for the magazine she wants a photo of the page she wants to read so she can read it at home. Sometimes she wants a photo of a pattern so she can re-create it at home. I never feel right about doing this. It is a form of copyright theft in some way. I think she could at least buy the magazine but... what can you do with a pushy Mother?

    • Keri Summers profile imageAUTHOR

      Keri Summers 

      6 years ago from West of England

      Thanks v much for your comment Paul. Yes, it complicates public domain copyright in some countries more than others. (The UK more so than many others, the States less so).

    • profile image

      paulgc 

      6 years ago

      Mmm, interesting. As an amateur photographer iv'e not come across this issue before, makes me think though.

      Voted up and interesting.

    • Keri Summers profile imageAUTHOR

      Keri Summers 

      6 years ago from West of England

      Thanks for your votes alocsin. Your suggestion is pretty cool. A private rotating gallery.

    • alocsin profile image

      alocsin 

      6 years ago from Orange County, CA

      I think another option is to have these photographs rotating on your digital TV, as a screensaver. Then, even the photos don't take up wallspace. Voting this Up and Interesting.

    • Keri Summers profile imageAUTHOR

      Keri Summers 

      6 years ago from West of England

      Thanks for your comment Docmo, I'm glad you found it useful. It's such a complex subject, but I'm determined to get to grips with it!

    • Docmo profile image

      Mohan Kumar 

      6 years ago from UK

      Useful info. Shows how much effort goes into producing excellent digital copies of paintings in order to produce an authentic facsimile... thanks.

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