[Commons-l] Official paintings held by the U.S. Government

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Someone questioned, Bill Alman, the White House curator who said:

Generally, the portraits are property of the federal government and are in
the public domain. In the case of the White House portraits, the photograph
of the portrait may have copyright restrictions, but that it should be
generally okay to use the images as long as the publisher of the electronic
image is credited.

The problem is that for some reason people in the discussion, are focusing
on the fact that copyright and ownership are seperate rights - and refuse to
acknowledge that the curator was clearly identifying the ownership of both
property rights by saying "the portraits are property of the federal
government [ownership of the portraits] and are in the public domain
[copyright status]."

The curator then showed a very sophisticated understanding of US copyright
law by making a distinction between the copyright in the work itself (which
is in the public domain), and the copyright of a photo which may or may not
be copyrighted depending on your view of the line of reasoning in Bridgeman
Art Library v. Corel
Corp.<http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.>which
held that exact photographic copies of public domain images could not
be protected by copyright because the copies lack originality. Where there
is signifant originality there would be copyright in the photograph seperate
from the portrait.

The curator seems, very wisely, IMHO, to refrain from giving an opinion
about the copyright of any reproductions (photographs) of the portraits
while drawing the attention to the questioner that this could be an issue.
He even very clearly identifies that the only copyright issue in question is
whether one is claimed by the "publisher of the electronic image."

Thus, the portraits themselves being properly commissioned by the US and
having the copyright transferred to the US govt - thus becoming "public
domain" as identified by the curator *are public domain works*. The only
issue is whether the photo itself is copyrighted.

This is also resolvable in one of 2 ways:

   1. Determination that the photos lack sufficient originality, thus the
   photographer can not claim copyright in the photo of a public domain work
   (following Bridgeman)
   2. Assuming that there is sufficient originality, so we need to find
   the copyright status of the photo seperate from the one in the portrait:
      1. If they are photos posted by the US govt and copied to
      wikipedia from there - then those are clearly in the public
domain as a work
      of the US govt.
      2. If the photo was taken by a contributor - then we should
      refer to his license in uploading the work.

Personally, my review of the photos in question indicate that they clearly
fall under the Bridgeman decision and the photographer can not claim a
copyright in them as there is not the sufficient originality by the
photographer

Jim

On 6/3/06, Jimmy Wales <jwales at wikia.com> wrote:
>
> I think there is no easy answer.  It would be best to contact the exact
> office or institution which commissioned them and ask for a letter
> clarifying the copyright status.
>
> It is possible that the government purchased both the copyright and the
> physical object, but also possible that the government merely purchased
> the physical object.
>
> Fredrik Josefsson wrote:
> > This issue has been discussed for a while now. First
> > on English Wikipedia, now on Commons.
> >
> > The discussion on Commons can be found at:
> >
> http://commons.wikimedia.org/wiki/Template:Deletion_requests#Official_paintings_held_by_the_U.S._Government
> >
> > A lengthy debate on English Wikipedia is at:
> >
> http://en.wikipedia.org/wiki/Wikipedia:Possibly_unfree_images/US_government_portraits
> >
> > The debate in short: The paintings are not Work of the
> > United States Government, they were made by artists on
> > commission. Can they be used as public domain?
> >
> > / Fred
>

-- 
Jim (trodel at gmail.com)
"Our love may not always be reciprocated, or
even appreciated, but love is never wasted"
- Neal A Maxwell
---Intersted in Gmail - let me know I have invites---
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