Can You Infringe On Da Vinci? Judge Seems To Think So

from the the public domain is dead dept

JJ sends over this ridiculous story of a federal court issuing an injunction to stop the display of a photo of a da Vinci painting on a website, because it might be copyright infringement. As you may recall, Leonardo da Vinci died in 1519. One would think that any work he created would now be in the public domain. In this case, we’re talking about a painting called Salvator Mundi, which only recently was “authenticated” as being done by da Vinci (though, I’m still really skeptical concerning the whole art “authentication” business). Apparently very few people have actually seen this “newly discovered” da Vinci. The small company that was set up to own the painting and any money that comes from it, Salvator Mundi LLC (SMLLC), hired a photographer to create photographs of the image, but then wanted to massively control the promotion of the painting.

SMLLC is claiming copyright on the photograph of the painting, arguing that while it may not hold the copyright on the painting itself, it can still hold the copyright on the photograph. Of course, that’s only true if significant artistic decisions were made in making the photograph… and then the copyright would only cover those pieces. Either way, someone got ahold of the photo and posted it to her own website. SMLLC claimed that this was infringing. The woman, Laura Sotka, tried to explain US copyright law the lawyers, who responded by suing.

The case is now ongoing… and the court’s first big move is to issue a preliminary injunction, blocking the dissemination of the copyrighted photographs. Of course, that seems a bit extreme, especially if she’s later found to be doing everything legally. Of course, it’s not entirely clear what SMLLC thinks it’s doing here either. Hiding the painting away doesn’t contribute to culture and it certainly doesn’t help make people any more interested in checking it out. And without more details it’s difficult to say if SMLLC really has a legitimate copyright claim, but I find it unlikely. It is worth pointing out that under Bridgeman v. Corel, a photograph of a public domain image can not be protected by copyright. So unless there’s something amazingly creative that the photographer did, SMLLC probably does not have a legitimate claim here. What’s unfortunate is that the courts have been dragging such a silly case on for so long — and, in the meantime, the woman being sued still has to live with such a bogus claim hanging over her head.

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Comments on “Can You Infringe On Da Vinci? Judge Seems To Think So”

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82 Comments
:Lobo Santosays:

Quick Fix

A thought:
Somebody goes to court claiming to have a copyright on breathing, and wishes the court to issue a “preliminary injunction” against various lawyers and executives in the MAFIAA who have been witnessed to be breathing.

If it’s found later, after a year or 2 in the courts, that the copyright on breathing then said persons may resume breathing–if they’re still able.

DH's Love Childsays:

Re: Quick Fix

I love it. Let’s see by their math (looking at the Jammie Thomas fiasco), what is it now, like $60,000 per infringement?

the average person takes about 20,000 breaths per day, so that’s $1,200,000,000 per day per executive. I say they can post a bond equal to one year’s worth of breathing in lieu of a preliminary injunction: $438 billion.

Can I get co-authorship on this copyright? 😉

Anonymoussays:

If you have ever tried to get a proper photograph of a painting, you will know that there is plenty of skill and work required to make it happen. It’s not a simple thing.

The title of the thread is entirely misleading, because nobody is claiming anything to do with DiVinci, only photographs that happen to contain a divinci work. As always Mike, you manage to do the chicken little panic up front, before explaining what is a very benign story.

wvhillbillysays:

Re: Re:

If someone has a method and apparatus for obtaining proper photographs of paintings, they are free to apply for a patent on it.

True, but they can’t extend that patent to every possible method or apparatus or way of taking photographs of paintings, which is what a lot of patent trolls try to do with their patents.

Chosen Rejectsays:

Re:

Allow me to educate you. No, even better, allow the Supreme Court to educate you.

While it may be assumed that this [photographing] required both skill and effort, there was no spark of originality…. Copyright is not available in these circumstances.

…”slavish copies” of public domain reproductions of public domain original works of art [are] not copyrightable despite the great skill and effort involved in the copying process, and minor but unintentional variations between the copies and the works copied.

zegotasays:

Re: Re: Re:

Wow, you’re a hostile guy. Not only did Marcus speak respectfully, he was completely right. Skill and effort have nothing to do with copyright. I can piss on a canvas and get a copyright on it, so invoking “But it took effort, it HAS to covered under copyright” is not just wrong, it’s intellectually dishonest.

Anonymoussays:

Re: Re: Re:

No need to kneel because the case is not a decision by the US Supreme Court. It is a decision by a federal district court judge, and as such is not deemed controlling precedent anywhere, even in the federal district where the judge serves.

This article makes a statement about the above case that suggests the question has been asked, answered, and is the law. This is an inaccurate statement.

Of course other judges who may be presented a similar question may consider the decision in that case and study its rationale, but such judges are free to rule without the case placing any constraints on their decisions.

Anonymoussays:

Re: Re: Re: Re:

First you make up a stupid name for yourself. Then you launch a “singing” career that involves you making an ass out of yourself in public and having people laugh at you, and then you show up claiming you are a serious artist, while you are busy mostly sampling others and trying to act like you have a clue.

That is how you fuck yourself. Marcus Carab is a talentless schmuck that did all of the above.

Any Mousesays:

Re: Re: Re: Re: Re:

First you make up a stupid name for yourself. Then you launch a “singing” career that involves you making an ass out of yourself in public and having people laugh at you, and then you show up claiming you are a serious artist, while you are busy mostly sampling others and trying to act like you have a clue.

You’ve just described how many comedy artists? You tell Weird Al Yankovic that he’s not a serious artists. Obvious it takes more talent than you think, but we’re still figuring how much thought you actually posses.

Anonymoussays:

Re:

“If you have ever tried to get a proper photograph of a painting, you will know that there is plenty of skill and work required to make it happen. It’s not a simple thing.
The title of the thread is entirely misleading, because nobody is claiming anything to do with DiVinci, only photographs that happen to contain a divinci work. As always Mike, you manage to do the chicken little panic up front, before explaining what is a very benign story.”

And, as usual, boy, you’re unaware of the law…
http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.
..which isn’t surprising, since you’re an idiot.

Justin Levinesays:

Re:

If you have ever tried to get a proper photograph of a painting, you will know that there is plenty of skill and work required to make it happen. It’s not a simple thing.

Agreed. But as others here have pointed out, that is irrelevant to copyright. Copyright only rewards ‘originality’ – not the ‘amount of work’ you put into making an exact copy of something, or how much ‘skill’ it takes to make an exact copy of something. Since it is an exact copy of the image, it is ‘unoriginal’ – even if you broke your back to get the lighting right in order to make it unoriginal.

The Supreme Court has expressly rejected the ‘sweat of the brow’ theory that you mistakenly seem to think applies in copyright law. If that were not the case, then people could claim copyright over the White Pages simply because they put ‘work’ and ‘skill’ into making an exact copy of the listings already in that book.

See Feist v. Rual for a more detailed discussion:

http://en.wikipedia.org/wiki/Feist_v._Rural

RDsays:

Re:

“If you have ever tried to get a proper photograph of a painting, you will know that there is plenty of skill and work required to make it happen. It’s not a simple thing.”

You’re right, its not a simple thing. Its also NOT artistic in any way, and is purely a technical exercise to get the photo to take properly. Copyright doesnt cover something like this. So, your “mike is a chickenshit FUDster” BS whinging is completely wrong. Again. Thanks for wasting our time and taking up space on this planet that could otherwise go to someone who might actually contribute something to this world.

Squirrel Brainssays:

Re:

Your comment lacks so much critical thought and replaces it with so much smug self-important blather, that it doesn’t warrant a rebuttal… but here we go.

How about you point out the half truths and mistakes, along with what is actually true? You know, for us who don’t trust you at your word.

How about state, logically, the reasons that you believe Mike’s skepticism about art authentication is unwarranted?

Otherwise, you wasted approximately 36 words.

Also, you’ll be taken a little more seriously if you don’t swear.

Alexsays:

Re: Re:

Well, being taken seriously by squirrel brains isn’t a high priority.

As mentioned, there are too many errors to be bothered with. But I suspect if you worked at it, Brains, even you could find one or two. Try.Using.Your.Brains.

But here’s one. Brains, art authentication exists, people practice it all over the world, and many have actually studied it in college!!! That Mike is “skeptical” of it (and you too, presumably), well, I guess one can find flat-earth advocates in every nook and cranny. I suspect it’s one of many topics experts like Mike and you know a lot about.

And as as for your comments regarding “critical thought”, go f**k yourself. Ditto your comments regarding my swearing, genius.

Good bye.

Any Mousesays:

Re: Re: Re:

You do realize that people go to college to become chirpractors, too, right? And yet the efficacy of the care they provide hasn’t been proven, either. So, Peabrain, the mere existence of a practice does not prove the practice. Next time try to at least utilize a tiny portion of the shriveled mass you describe as a ‘brain’ to do some critical thinking instead of off-the-cuff attacks and worthless ‘rebuttals.’

hothmonstersays:

Re: Re: Re:

Don’t be skeptical of art authenticators because they exist, solid argument.

I guess dog physicoligists are the real deal too then, because they go to school and practice their vocation. I guess scruffy is depressed because his collar isn’t shiny enough and he feels inadequete.

Obviously art authentication is a hard science, and very provable and no one has ever scammed anyone or been wrong, or passes themselves off as knowing more than they do. All art authentication experts should be believed, because they went to college.

http://www.newyorker.com/reporting/2010/07/12/100712fa_fact_grann

Anonymoussays:

Re:

“This article is so riddled with half truths and mistakes it doesn’t warrant rebuttal. However, your one line “I’m still really skeptical concerning the whole art “authentication” business” does at least show what a complete f**king pea-brain you are.”

Why, since there have been cases where “art authenticators” have been shown to be shills for dealers?
Unless, of course, you’re one of those shills?

Chosen Rejectsays:

Re:

You don’t happen to know a Thomas W. Wilson, Jr, or perhaps an Elizabeth, or perhaps a one J. Golfis do you? Either way, I’ve done the dirty work of finding why Mike might be skeptical of art authentication.

That being done, I’d like you to take time out of your obviously very busy life (since you couldn’t be bothered to include more than one of the very many half-truths being riddled all over the place) and answer one question. Why is it that someone being skeptical makes them a pea-brain?

Robsays:

Copyright doesn’t necessarily require skill or effort. It does generally require a base level of creative or artistic input, though. Copyrights in photos of objects (like a painting) can exist even when the underlying object is in the public domain, but you generally need to show that some sort of creativity or artistic assessment went into it on the part of the photographer. This image, if the link posted by Anonymous Coward is accurate, seems to be a stretch in terms of creative or artistic input in the photograph itself. It’s basically a straight-on photo of the painting with little outside of that which would seem to qualify for copyright. Lighting? Like I said, a stretch….

Niallsays:

Re:

Essentially, taking a picture of the Mona Lisa wouldn’t grant you copyright. If you made some interesting (and original) composition involving people or objects framing it, you could copyright that photo, but you couldn’t claim copyright over other people taking pictures of the Mona Lisa.

Similarly, ‘original’ here means out of the ordinary, so just because you took a picture of three people themselves photographing the Mona Lisa (which is always happening) wouldn’t grant you copyright on that ‘expression’. Three clowns however…

Paul Alan Levysays:

The details are linked from the underlying story -- Sotka don't look so good

The complaint http://www.fkks.com/docs/complaint_salvator.pdf alleges (? 7)that many creative judgments were made in creating the photograph, and further (? 8) that the original digital image was further altered in a variety of ways in consultation two art experts. The artist’s affidavit (part of the file linked above) goes into a fair amount of detail about the creative choices (?? 4, 6-7, 9) and the digital alternations (?? 8, 10-11). The complaint further alleges that Sotka posted the image on her web site as a freebie as part of a threat to make a high quality digital copy available, and encourage rapid dissemination of that high quality image, unless plaintiff stopped interfering with her efforts to sell merchandise through Brouhier’s web site with copies of the photo printed on them. Of course, that doesn’t matter absent copyrightability, but the issuance of this threat could well have encouraged the judge to grant the preliminary injunction.

One procedural flaw: The order http://www.fkks.com/docs/SalvatorMundiOrder.pdf violates Rule 65(d)(1) of the Federal Rules of Civil Procedure, which requires any order granting a preliminary injunction to (A) state the reasons why it issued. But the order just says the reasons were stated on the record at the hearing. But that is only a ground for appealing the order.

DRGsays:

Two questions

OK, when I go to museums, I like to photograph the artwork I see. Many museums allow such activity but say that it can only be for personal/non-commercial use. Are they blowing smoke?

Also, photographing sculpture requires the right angle, playing with light, exposure, etc. Does that make it copyrightable?

naschsays:

Re: Two questions

Many museums allow such activity but say that it can only be for personal/non-commercial use. Are they blowing smoke?

Assuming US or similar law, all they can do is throw you out of the museum or not let you back in if they don’t like what you do. They don’t have any control over your photos, since if there is any copyright in them, it’s yours.


Also, photographing sculpture requires the right angle, playing with light, exposure, etc. Does that make it copyrightable?

If a judge determines there’s substantial creativity involved, yes. Just because it’s difficult and complicated, no.

Marcus Carabsays:

Re: Re: Two questions

Also, photographing sculpture requires the right angle, playing with light, exposure, etc. Does that make it copyrightable?

If a judge determines there’s substantial creativity involved, yes. Just because it’s difficult and complicated, no.

Also (to expand on what nasch said) the copyright you own will only be over those things – angle, light, exposure etc. So other photographers are free to take their own shots, and the actual statue element of your work is not itself under copyright – that’s what creates the gray areas like the Shepherd Fairey Obama poster or the Mr. Brainwash RUN DMC portraits: the debate in those cases is (partially) about whether the new work actually infringes on the copyrighted elements of the photographs (the lighting, angle, potentially the pose, etc) or if it only uses the subject of the photograph (Obama, Run DMC), which is not itself protected.

btr1701says:

Da Vinci

From the article:

That photographer took the photograph in question, which
is in high-resolution. No one else has ever photographed
the restored Painting and any future exhibition will prohibit
photography.

I wonder what will happen when someone inevitably violates their rule and manages to snap a photo of it anyway, and it ends up all over the web?

The company that owns the painting can’t claim it’s a copyright violation, because they don’t own the copyright on the painting. They only own the copyright on the first photograph of it. And copyright on any subsequent photograph will attach to the person who takes the picture, even if they’re violating the company’s rules by taking it.

Alexsays:

Holy Smokes, you people have been posting all weekend? (ahem) whatever…

To address the question of “art authentication” (or authentification, as it’s usually described), one should visit one of the many art museums to be found around the world. In places like The Louvre, The Hermitage, and the Nation Gallery in Washington many of the early European Paintings are unsigned, and are identified (and their authenticity corroborated) by various methods by experts trained in such matters: connoisseurship, pigment analysis, infra red spectography, dendro-chronology, thermo luminecence, and other good stuff. To suggest one is “skeptical” of this and citing a few charletains who got some press as proof is akin to saying one is “skeptical” of medicine and offering Dr. Kavorkian as an example. Art authentification extends to virtually all 2 and 3 dimensional artistic fields, including Modern art, Eastern art, Early art, Ethnographic art, Antiquities and much more. It has been practiced for hundreds of years, basically as long as humans have been collecting art. Still skeptical? You’re certainly allowed to be as ill-informed as you wish. Generally people don’t brag about it.

The author of this article says few people have seen the Salvator Mundi (both irrelevant, and wrong) and questions why the owners would want to keep the image under control, essentially impuning the work’s authenticity with lots of “quotation marks”. To that I would suggest reading yesterday’s Sunday London Times magazine, where the cover story puts forth a completely differing view point, one borne of investigative journalism, not armchair-blog bullshitting.

I don’t know about copyright and wouldn’t dream of venturing an opinion. But judging how this author generally just writes whatever he thinks sounds good, he’s probably wrong about that, too.

cheers

Ginevra di Bencisays:

The blogger named Alex

Hi, the commenter Alex is Alex Parish in New City New York, right? One of the owners of this painting (Robert Simon of Tuxedo park being another)defending it.

Alex Parish, get real. The ‘painting’ by Leonardo is a shadow of its former self. It’s on the market, it’s off the market, and it has been skillfully ‘treated’ by a restorer living 500 years after the artist. I hope it’s off the market forever. Maybe you’ll get some dope in Dubai to show an interest, for a million.

The photographer has nothing to do with it; no art, no skill, except making a shadow look a little better. This is a Born Again Leonardo.

How much ‘Leonardo’ do we get for $100 mil, $200 mil, or not on the market, anyway?

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