What's the Difference Between a Public Domain Painting and its Image?
Or, is The Mona Lisa Up for Grabs?
Copyright. The Internet. In the tangle of opinions over who can use what with or without permission, even the use of public domain paintings is not as uncontroversial or legally backed as might be commonly believed.
As writers and readers of art-related material, I think it's worth knowing what the situation with public domain works of fine art is, in order that we can contribute to the debate, and perhaps have some influence on how the law might develop over the coming years.
Finding Mona Lisa
If you type "Mona Lisa" into the search box on Wikimedia Commons, you'll have dozens of files of The Mona Lisa, and derivative works, come up. You won't find the version to the right, as it's an in-copyright work of art by Hubber and talented stickman artist Mark Ewbie. (It's used here with legally rigorous permission from Mark, and may not be lifted without his further permission). But there's a reason why this charming alternative is here, and why it would be inappropriate to use Leonardo da Vinci's original to illustrate this article, if we're to give this debate justice.
The very fact that The Mona Lisa and other famous and not-so-famous historical works of art are on Wiki Commons suggests on the face of it, that these downloadable pictures are in the public domain and you can use them as you wish. However, unfortunately for those of us who like to write about fine art, or use it as illustrations, the truth is that Wikimedia has only taken a "position" that they are free to use, and is also relying on the integrity and "position" of the up-loaders. There are plenty of people and organisations who take a different "position", and that is that downloading and then using the files in your own piece of work is theft of copyright. How so, if the paintings are in the public domain?
Paintings in the Public Domain
First, a quick recap on the paintings themselves. A painting itself can be safely considered totally in the public domain, according to all copyright laws worldwide, if the artist has been dead for a hundred years. (Many countries only have a copyright period of 70 years, but 100 years covers every eventuality, whatever corner of the world your online journalism, with its illustrations, is being read).
The Mona Lisa of course is safely out of copyright, as Leonardo da Vinci died way back in 1519. But it's worth mentioning actually, that even some very old paintings are not yet fully in the public domain. For instance, Edgar Degas, the drawer in pastels of those lovely ballet dancers, painted a self-portrait in 1863, as a young man. He lived another 62 years, dying in 1917. As his work won't be internationally out of copyright until 2017, then the 1863 portrait, at 147 years old still isn't out of copyright either.
But if a painting is in the public domain - meaning that it could be reproduced by anyone without needing permission - then why is there a question over being able to use them legally on the internet?
When is a Painting Not a Painting?
The complication arises because we are not directly using public domain works of art. A picture of a painting, is not a painting. The latter generally hangs on walls in a frame, and has its own physicality, and the former is a 2D image or an electronic file. When we upload an image onto our blog, article or website, we are using photographs of public domain works of art, and this is the root of the divided opinions concerning copyright. Photographs, of course, have their own copyright claims. It is against many countries' (including the UK's) copyright law to use them in online articles, or your blog or website, without permission, if the person who took the photograph has not been dead themselves for up to one hundred years.
It might seem ridiculous, or it might not depending on where you are coming from, that photographs of works of art have their own copyright.
I first came across this issue while working on a fine art documentary for the American PBS channel WGBH Boston. It was in the time before copyright debate was broadened by the arrival of the internet. I've written about it in Photographs of Fine Art Paintings - Do They Have Their Own Value? - it was this experience that made me hesitate about whether using public domain works of art from "free" images found on the internet was as strictly "okay" as might be presumed.
Bridgeman vs Corel
However, the assertion that images of the paintings have their own inherent legal protection was challenged successfully in the New York courts in 1999. In a case between The Bridgeman Art Library and Corel, an organisation who created a CD-ROM compilation of masterpieces, it was ruled that a photograph of a painting is not sufficiently "original" to warrant its own copyright. But the ruling has limited jurisdiction. In my attempts to understand US copyright law, and pending clarification brought by any future court cases, the ruling can be taken as applying to the USA as a whole, but it is by no means international, and the internet is an international publication. This is why you'll also see, in addition to Wiki Commons taking a "position" that the reproductions can be used, that they add a disclaimer at the bottom of their pages regarding the situation in other regions.
Statement from Wikimedia Commons pages regarding public domain works of art:
'This is a faithful photographic reproduction of an original two-dimensional work of art. The work of art itself is in the public domain ... The official position taken by the Wikimedia Foundation is that "faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain".'
Disclaimer from Wikimedia Commons on same pages:
'Please be aware that depending on local laws, re-use of this content may be prohibited or restricted in your jurisdiction. See Commons:Reuse of PD-Art photographs.'
Wikimedia's initial statement above sounds great, but it's not the whole story. Their disclaimer hints at cracks in how easy it is to stay completely legal when using these images. The further you follow through, the clearer it becomes that there is very little official concurrence on the overall position of these images.
If you follow the link mentioned in Wikimedia's disclaimer, Commons:Reuse_of_PD-Art_photographs, I'm afraid it is nightmare material for anyone, particularly Europeans, who want to stay on the right side of the law and have reason to want to use public domain fine art images for free. It's a system of red crosses or green ticks for different countries' laws, and you have to read beyond each green tick too, because there are often caveats to what they actually mean, and how available those images are. It makes it very clear what is at stake and that image rights holders do have a basis on which to sue, whatever Wikimedia's own policies may be.
There's another link from the Wikimedia Commons pages that is worth following through and is recommended reading if you want to get on top of these issues, and decide whether Wikimedia's position is the same as yours. If you follow through to Commons: When to use the PD-Art tag, you'll find there's a lot of stuff that a non-legal head has to concentrate hard on to get your head around. But the upshot of it is that Wikimedia is indeed taking a position on public domain images that galleries, and more especially laws, particularly outside the States, do not necessarily agree with. Galleries aren't rushing to challenge copyright infringement from online use in the courts - there seems a certain amount of reluctance to, both financially and with regard to what the consequences might be - and in the meantime Wikimedia Commons is keeping its head somewhat provocatively about the parapet.
A Picture Library's "Position"
Even the New York-based picture library Art Resource - in the same jurisdiction as the Bridgeman vs Corel decision - has this to say, from its copyright information page:
From Art Resource's statement on copyright
'Photographs and other images are protected under the laws of copyright, and the creators as copyright owners have absolute rights to control the use of their photographs. '
and they go on to say:
'With the access to so many images, via not only traditional print media, but CD-ROMS and the World Wide Web, together with the ease of copying images, manipulating and combining them with others, the rights of the copyright owners of these images are either forgotten in the excitement of the new technology, unknown due to ignorance or just ripped off because the chances of being caught are considered to be too remote.'
I am making no judgements (especially where people are using public domain art images but have taken the trouble to properly credit them and at least try to assign them the appropriate and correct copyright information) but I do think it's worth a proper debate about the situation, the future of art photography, its worth, the moral access to works of art and so on. I do believe that somewhere there is a useful middle ground that will come from further discussion and debate rather than everyone - online users, galleries, not-for-profit resources, picture libraries and so on - taking their own "position" without giving due consideration to the others.
I think all this is a more pressing issue in online publishing than waiting for the courts and legislators to decide. I believe we would do well to get involved in it as an online community. Writing about it here is my personal start. Voices welcome! If you're new to these issues, I recommend reading the following article regarding basic legal use of images from The Learning Centre at HubPages first, if you haven't already done so:
Who can make total sense of this issue, and the links down which Wikimedia sends us? I don't think it's possible. You don't have to read every word of the Commons pages linked to in the sections above to realise that. We're all missing out until there's a clearer way through. I think we need another Mark Ewbie to cheer us up.
So is The Mona Lisa Up for Grabs?
I would say, in strictest terms, that it's not. That's because legal protection of the images of the masterpiece, although this principal has been challenged successfully in the US, has not been overturned internationally. And it's an Italian painting, in a French gallery, in an international forum. This is not to express an opinion on whether or not I think international galleries should be more open with the photographs of their works, without any form of compensation. But I'm totally up for joining in the debate.