A museum has a very famous painting that is familiar to people across America. However, the museum says it owns the copyright, and you can't display pictures of the painting without paying a fee.

But someone takes a photograph of the painting and makes it available on Flickr with a Creative Commons license that allows commercial use.

Can the photo of the picture be used commercially? Or is this photographer in violation of the law?

  • Is the artist alive, or if not, how long has the artist been dead? – mkennedy Jun 20 at 18:54
  • He died in 2009? – David Blomstrom Jun 20 at 18:59
  • Sorry, I didn't mean to include a question mark. – David Blomstrom Jun 20 at 21:04
  • "The museum says it owns the copyright": the museum could be wrong about that. A lot of people misunderstand this, and it's even possible that museum executives are among them. Someone who owns a painting does not necessarily own the copyright in the painting. It's possible that the copyright has been assigned to the museum, but it's not necessarily the case. – phoog Jun 21 at 6:38

The photographer infringed copyright by taking the picture. He did it again when he uploaded it to Flickr. Every subsequent use of that picture is an infringement. People getting their copy from Flickr might be able to avoid statutory damages because they didn't know that the CC license is legally meaningless. The museum can, if they care, submit a DMCA take-down request so that Flickr is itself off the hook.

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  • I'm just curious - do most museums post notices that visitors aren't allowed to photograph paintings? If they allow visitors to take photos, aren't they kind of shooting themselves in the foot? – David Blomstrom Jun 20 at 22:47
  • Usually, and if they explicitly say "You may take photos and do whatever you want" (a) they have given permission so no infringement and (b) I'll eat my hat. – user6726 Jun 20 at 22:51
  • LOL - The law works in mysterious ways. ;) – David Blomstrom Jun 20 at 22:56
  • @DavidBlomstrom many (but not all) museums allow photography. Most of the art works in most museums are not protected by copyright. Sometimes, museums prohibit photography in certain rooms or certain exhibitions, and perhaps copyright law is the reason. – phoog Jun 21 at 6:42
  • Flash photography damages paintings, so that will be most most likely not allowed, independent of any copyright issues. Equally, if you intend to sneakily take photos with your smartphone, do everyone a favour and make sure the flash is turned off. – gnasher729 Jun 21 at 11:04

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