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This page discusses legal issues but it does not constitute legal advice. Please see the General disclaimer.

Wikimedia Commons explicitly permits the hosting of photographs that carefully reproduce a two-dimensional public domain work; such photographs are in the public domain in the United States, where this site is based (if you are a Commons contributor, see Commons:When to use the PD-Art tag for more information on this policy). However, there may be local laws that prevent or restrict the reuse of such images in your country, some of which are listed below. While we hope this information will be helpful, any use of such content is at your own risk, and you should consider securing legal advice in your jurisdiction before using content.

The U.S. case of Bridgeman v. Corel (1999)

In Bridgeman Art Library v. Corel Corp. (1999), the New York District Court held that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". In spite of the effort and labor involved in creating professional-quality slides from the original works of art, the Court held that copyright did not subsist as they were simply slavish copies of the works of art represented. While the New York District Court does not hold jurisdiction over the whole US, other district courts have generally relied on and expanded on this decision.

The rule therefore excludes from copyright protection photographs which are intended to be no more than a faithful reproduction of a two-dimensional work of art such as a painting. If only technical expertise is involved (to take a faithful and unimaginative picture), the photograph acquires no copyright protection in its own right. The case extends the rule that scans and photocopies of two-dimensional originals are not copyrightable to cover in addition faithful reproductions created in the U.S. through photography.

As a result of this case, anyone taking in the U.S. a mere 'record' photograph of a 2D work of art—plain, full-framed—gets no copyright protection for the photograph. If the original work of art is sufficiently old that its own copyright has expired, the photograph itself will then be free for use in the U.S.

Different countries apply the rules on originality in different ways, and identical images may be treated differently in different jurisdictions. In some countries (such as the UK) faithful reproduction images may be considered sufficiently original to attract copyright protection; in others (such as the Nordic countries) there may be neighbouring rights that apply.

Neighbouring rights ("simple photographs")

In certain countries, any photograph, whether original or not, is covered by a so-called "simple photograph" neighbouring right that amounts to a copyright with a reduced term of protection. If the photo is sufficiently original, the author can additionally be granted normal copyright protection. In the Nordic countries, for example, the right applies to all photographs, including "faithful reproduction" images. However, protection does not normally apply to scans or other photomechanical reproductions — this special neighbouring right applies only to photographs. See Commons:Simple photographs.

Country-specific rules

Australia

/ Inconclusive. Court cases in Australia have gone both ways. See Telstra v Desktop Marketing Systems.

Belgium

/ Inconclusive. In the Belgian law "Wet betreffende het auteursrecht en de naburige rechten." of 30 June 1994, in chapter 1, part 1, article 2, paragraph 5 one finds:

De beschermingstermijn van foto's die oorspronkelijk zijn, in de zin dat zij een eigen intellectuele schepping van de auteur zijn, wordt (vastgesteld) overeenkomstig de voorgaande paragrafen.[1]

France

/ Inconclusive. Court cases in France have gone both ways. See fr:Utilisateur:Jastrow/PD-art (in French).

Italy

OK before 2004 /  Not OK otherwise. Reproduction photography is protected by copyright in Italy, but this right subsists until 20 years have elapsed from the year in which the picture was produced. Article 87, Chapter V, Rights relating to photographs: «[... ] reproductions of works of graphic art [...] shall be considered to be photographs for the purposes of the application of the provisions of this Chapter» (original version). Article 92, Chapter V: «The exclusive right in respect of photographs shall continue for twenty years from the making of the photograph.»

Netherlands

/ Inconclusive. In the Netherlands, the Van Dale/Romme-arrest, a decision of the Supreme Court of the Netherlands about a database, states that a work must possess two characteristics in order to be copyrightable:

1. een eigen oorspronkelijk karakter (its own original character)
2. met een persoonlijk stempel van de maker (and a maker's mark)

This ruling is considered to be applicable to other 'works' (as defined in the Auteurswet 1912) as well. However, it is unclear where to draw any line with regards to these two points, so it remains to be decided on a per-case basis if a photograph of an old painting can be copyrighted or not. Generally, exact and technically perfect photographs of two-dimensional objects in the public domain are not considered copyrightable, since the aim of making an exact reproduction rules out any originality on the part of the maker (see also the explanation on [2])

Nordic countries

This public domain Icelandic artwork was scanned from a book published in 1950. Any exclusive rights of photographic pictures involved in producing the book have expired by now.

Generally  Not OK. In Denmark (Article 70), Finland (Article 49 a), Norway (Article 43 a), Sweden (Article 49 a), and Iceland (§49), anyone who has produced a photographic picture has an exclusive right to reproduce the picture and to make it available to the public. This right subsists until 50 years have elapsed from the year in which the picture was produced (15 years after the death of the photographer but at least 50 years in Norway).

Photographic reproductions from these countries enter the public domain when both the copyrights on the original and this neighboring right on the photograph have expired. Recent photos are thus never OK, but older ones may be (if the original is in the public domain). These countries had until the 1990s shorter terms for this photography right.

• Iceland: OK before January 1, 1974. Iceland has a term of 50 years since creation.
• Norway: OK before January 1, 1970 if the photographer died before January 1, 1980 Norway had a term of 25 years since creation (but at least 15 years after the death of the photographer) until 1995. If the photographer died later or the picture was taken later, the current terms apply.[3]
• Sweden: OK before January 1, 1969. Sweden had a term of 25 years until 1994.
• Finland: OK if created before January 1, 1974 or published before January 1, 1966. Finland had a term of 25 years since the year of first publication until 1991.
• Denmark: OK before January 1, 1970. Denmark had a term of 25 years until 1995. (§91, 5 in the current law).[4]

However, mechanical reproduction such as photocopying and scanning are not mentioned in the laws, and are probably OK. Similarly, reprints using old etchings and copper-plates are likely not protected.

United Kingdom / UK

/ Inconclusive.

The courts in the UK traditionally applied a very low test for photographic originality, based on the "skill and labour" required to capture the image, and it was long thought that there would most likely be sufficient originality in a photographer's selection of lighting arrangements, exposure, filters and so on for a new copyright to be generated. However, the 2009 Infopaq decision of the CJEU defined a different test, namely "Is it the author’s own intellectual creation?"

In November 2015, the UK IPO updated its copyright advice notice to include the following:

Are digitised copies of older images protected by copyright?

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

Although the IPO advice is not binding on the UK courts, it is of useful persuasive value. It's interesting that the official view being taken is that the European Court of Justice has effectively replaced the very low bar of "Was sufficient skill and labour applied?" with the higher one of "Is it the author’s own intellectual creation?".

Note that there is no issue regarding raw unenhanced scans or photocopies of PD illustrations in an old book. These are always OK, as purely mechanical copying has never been capable of creating a new copyright.

United States / USA

OK Under the rule in Bridgeman Art Library v. Corel Corporation, a mere 'record' photograph of a 2D work of art (i.e. a photograph which is an as-accurate-as-possible copy of the original) acquires no copyright protection.

See also

• Category:PD-Art license tags
• A comparative legal study by Thomas Margoni from the Institute for Information Law (IViR)