HNW - Drawn thread/facsimile patterns/mittens

Brett and Karen Williams brettwi at
Fri Nov 7 21:20:01 PST 1997

Mike Newell wrote:
> Dear Nan-
> I think I am getting the picture, through all the mud, of copyright. I was
> confused when I saw some GIFs in the Living History Forum. They were of
> needlework from the V&A and I was wondering how someone could copyright a
> photo-- but the photo was taken by the researcher, not the V&A. So I gather
> that the photo by the private researcher was a 'creation" and this is why
> it is copyrighted. It's weird to me but I am slowly beginning to catch some
> drift. Thanks so much for being patient enough to explain.
> --Kathryn
> SCA: Kathryn Goodwyn
> "too many centuries..too little time".


Ho, once more I step into the breech, dear friends. ;)

My father, a fine artist, has a little stamp he uses on the back of each
painting he finishes, frames and sells. Each of his paintings actually
has more than one 'identity' in law. Firstly, the painting is itself a
work. Secondly, the reproduction thereof is another work-- which my
father has attempted to control by clearly stating a restriction on the
reproduction rights of each of his paintings. Incidentally, Dover
publishes collections of clip art that are clearly labelled copyright
free-- which eliminates all consideration of this precise issue.

The copyright of a photograph is its own entity. The reproduction of
that photograph pertains in law to the identity of the photograph
itself. For example, when a museum causes the publication of a photo of
an item in its collection, the rights to the item itself may be
considered public domain, but the photograph of the item is subject to
current copyright laws as it is a separate 'work'. The museum employee
is entitled to a credit for the photograph, having made a 'work' (in
this instance, the photograph), however the rights (and payment of
royalties therefor) to that work would be up to an arrangement (either
contractual [typical] or verbal [rare due to potential
misunderstandings]) between the museum and the photographer. To put this
into a physical example: If my dad had a painting of his photographed by
a professional photographer, he'd have to get an arrangement in writing
to reproduce that photograph in the various catalogs in which his
paintings have been reproduced-- until the photographer's copyright
expired due to the normal course of time as defined in the relevant
copyright laws. This is why my dad not only restricts the reproduction
rights of his paintings to himself and his heirs, but takes his own
photos and makes his own slides. Much less hassle for him.

Here's another example. Look in the back of one of your favorite
paperback novels for a picture of the author. Notice the photographer's
credit in fine print on one side. The author certainly isn't getting a
royalty for his or her face shining there for the audience to see, but
the photographer certainly is, each time another copy of that photograph

What is currently under debate is the copyright nature of the Web.
Y'see, anyone who publishes a photograph on their website pretty much
enables that photo to walk away (if you have Netscape, right click on a
photo or picture you like the next time you look at it on someone's web
site and see what happens...). That means copyright royalties with
respect to reproduction rights are basically unenforceable.

I, personally, don't know if any case has come before the courts to test
out the issue of reproduction rights on the Web-- however, since I no
longer work in a law office and can't hit the books, I don't think that
my assertion is necessarily true that there *hasn't* been a test case.

Where I would hate to have the Society exposed to suit over copyright
violation is in its common collective habit of overextension of the
'fair use' laws. Fair use says that an individual may make a
reproduction of a small exerpt of a printed work for one's own personal
use, for a limited time. Then those copies are assumed to be destroyed,
once the need for that personal use has expired. There was indeed a test
case where a number of university professors were dragged into court to
explain why they had had their graduate students routinely photocopy
whole chapters of selected books and hand them out to their classes.
The  Kinko's chain was part of this lawsuit, if memory serves, and it
*did* paid out a huge financial award in damages. Incidentally, this is
why Kinko's staff is such a Right Pain in the Tuchus when it comes to
making *any* photocopies of books. In California their waiver of
responsibility, of sorts, isn't worth the price of the paper it's
printed on, however at least they're establishing a significant pattern
of getting that waiver signed-- which might cover their corporate butt
if they're hauled into court again.

But anyway, the professors and Kinko's lost. Much embarrassment and
annoyance all around when the university(ies?) named in this lawsuit
paid their bill. It is customary in the United States for the losing
party, after trial, to foot the bill not only for the court costs,
attorneys' fees of its own side, the judgment (damages)-- but the
winning side's legal and court costs, too. 

Can you all jump to some conclusions on related relevance of this
discussion to Society class handouts here? ;) Ignorance of laws *can*
mitigate damages depending on the sympathetic nature of a jury-- but I
wouldn't count on it. Knowing that one can (most likely) get away with
doing something naughty doesn't discount the fact that the underlying
act is *naughty*.

(feeling a little overcautious tonight...)

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