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I'd like to create some original art using images from art history. Let's keep the question widely applicable and say that I might be interested in anything from old paintings and engravings to pen and ink magazine art to early photography, but all of it would be pre-1900s. Many of the images I'm interested in go back much further, all the way to the late 1500s. I live in the United States, but might want to source images from overseas.

Presumably the copyright holders for these images are all long expired, and if I've got things right because they predated the copyright law enacted in the early 1900s these images should all be in the public domain.

A quick google and a perusal of some art books tells me it isn't that simple. Image archives, whether online or in photo book form, generally appear to make a copyright claim on the images they contain. This makes my want to get a generally more robust idea of what I can and can't do with art historical and early photographic images before I go any further.

My question is, what should I know about copyright law and using images that were created prior to the 1900s? What is the best legal practice for reusing images like that in original artwork?

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You don't seem to be distinguishing properly between "original artwork" and photographs of it. A 19th-century painting will be out of copyright, so you can set up an easel copy it yourself, or even take a photo if the owners don't mind; your copy can be used however you please. However, other people can't use your photograph without your permission. Similarly, if you want to reuse a photograph used in an art book, the important thing is the copyright on the photograph, not the painting.

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    How do you square this with the sensible contrary holding in Bridgeman Art Library v. Corel Corp. that exact photographic copies of public domain works have insufficient original creative expression to be copyrightable? Do you have a better citation for your contrary position? – David Schwartz Dec 19 '18 at 10:36
  • The above is true of "non-slavish" images of PD art, such as a photo of a picture in its frame, set on a stand (all of which are shown in the picture), as I understand Bridgeman. But most pictures in "art books" are slavish reproductions, ans so have no separate copyright protection under the Bridgeman rule, and so i have downvoted this answer as incorrect. – David Siegel Feb 16 at 15:03
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According to this source, copyright in images published before 1923 are mostly in the public domain.

However, there's one possible trap. Copyright in unpublished images has a length of author's life + 70 years. So if the author was still living in 1948, their unpublished works would still be copyrighted. For unpublished corporate/anonymous works, the copyright is 120 years, so anything before 1898 would be OK to use.

Most of the country-specific special cases wouldn't apply if the work was published before 1923 or unpublished, or at least not in a way that works against your use. If the work was created by a resident of Iran, for example, the US would not recognize any copyright regardless of the year.

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A photograph or scan of a flat (2-D) work of art, that attempts to be an exact ("slavish") reproduction of the original work will not have a separate US copyright under the Bridgeman vs Core 36 F. Supp. 2d 191 (1999) court decision. While this is not a US Supreme Court decision, it has been widely followed in US courts, and by the courts of many other countries. The basic principle of the decision is that an exact reproduction is not an original work, and so not protected by copyright. This decision will not be followed by those countries that adhere to a "sweat of the brow" theory of copyright.

Such a slavish reproduction of pre-1900 2-D art will be in the public domain, not protected by copyright. The owner of a copy may prevent copying by its terms of access, but if a copy is made anyway, it will not be copyright infringement, although it may be a violation of the contract under which the person who made the copy gained access.

(The rule for sculpture and other 3-D art is different, because the choice of viewing angle, lighting, etc, is enough to make the photo original.)

  • The point you make in paragraph 2 has come up in questions about copyright for vintage newsreels, where the user (wrongly) argued that he had a right to simply have a digital copy of company's historical footage of, say, something like FDR giving the Day of Infamy speech. – jeffronicus Feb 15 at 16:18

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