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Copyright law for images: what is it? – and why is it so different to copyright law for sound recordings?

Samizdata’s commentariat sometimes irritates, but I generally find that when I ask it a technical or factual question, then in among the waffle I get good and pertinent answers, and now I have another question, concerning copyright. It was provoked by a phone conversation between me and Findlay Dunachie (who is a real person and who does live in Glasgow) about culture (harking back to my posting about that talk I am to give), by which we both meant music, pictures, etc. (rather than the incoming tide of brown people that threatens to bring all of civilisation to a standstill). I said I was interested in … whatever it was, and Findlay replied that, on the other hand, one of the cultural things that particularly interested him was why, although we can all now own cheap CDs of great symphonies and concertos and operas and oratorios, we cannot drop into a museum and view full size, electronic reproductions of all the world’s great artistic masterpieces. Why cannot museums get that organised? Is it original object fetishism? Are we only staring at vast sums of money when we look at paintings, so would copies not count?

I do not know anything like all the reasons why this cannot or does not happen. But here are some guesses.

Good copies of great paintings are technically quite hard to contrive, especially at full size. There is a comment about that from Alan Little on this Brian’s Culture Blog posting, which was about colour variations between different electronic versions of the same painting on the internet, and about the closely related matter of colour variations between different computer screens.

Also, there does seem to be a difference between, say, my willingness to pay £5 or even £10 for an old recording, and my utter unwillingness to pay as little as 5p for an electronic copy of the Mona Lisa to stare at on my cheap computer screen. Maybe there are actually plenty of fabulously good copies out there, but at a price, and I am a cheapskate. And maybe I am not the only one. But even if all that is true, you would think that museums could do deals amongst themselves to get around all that. So maybe us punters do only want to see the originals, no matter how great the potential copies.

But, and this is where I have a specific question to which I seek a specific answer, I rather think that there is another inhibition at work here. Pictures stay in copyright for ever, unlike sound recordings.

It is perfectly possible for a business like Naxos Historical to flourish, and it does, no matter how much its very existence may enrage the great recording enterprises whose recordings it (perfectly legally) makes use of, after the passing of only a few decades (my understanding being three, but maybe the Europeans will change/are changing/have changed that to five). But no matter how many decades elapse, with pictures it is different. With recordings, after a few decades, all bets about the legality of copying are off. With paintings, no matter how long ago – how many centuries ago – they were painted, all those bets remain on. And it is the same with imagery of any kind, that is to say with photographs (which are a more exact equivalent of sound recordings than paintings are).

The central question to which I seek a definite answer is, simply: is that right? I have been running my Culture Blog now for well over a year, and I am rather ashamed that I still do not even approximately know the answer to this question about the legality of image copying, but better late than never.

There is also the question of whether the legal facts of image copying ought to be the legal facts. Is what now happens right? In general, and assuming that I am very roughly right about this, what on earth is the justification for treating imagery so extremely differently from sound recordings? I am sure that there are good reasons for this sharp difference, but I have never thought about what they might be, and it is time I did.

My thanks in advance to any commenters.

19 comments to Copyright law for images: what is it? – and why is it so different to copyright law for sound recordings?

  • I do not believe that you are correct. There is no different length of copyright for sound recordings versus images.

  • Dale Amon

    Images are the same as far as I know. What you might be thinking is that with images there is only ‘one’ original or perhaps a limited edition if woodcuts or photos. Images are much like sculpture; the value lies in owning the original.

    And as you point out, reproductions (of paintings) are difficult. Art museums expend immense effort to get good catalog images. And even then, you lose the third dimension of oil paintings. There is texture and pattern to these things which cannot be represented on a screen.

    Rest assured there is no copyright on the Mona Lisa or virtually any other great art work.

  • There are two copyrights that apply for recorded music – one copyright that belongs to the composer and one copyright that belongs to the performer. The copyright that applies to the performer gives him both control and the right to decide how he is compensated. That is, you cannot (at least in theory) copy the recording without his consent, and he can decide how much he is going to charge for this privilege if he gives the consent. The composer on the other hand is subject to a compulsory licence. If he has allowed one recording of his music to be sold, then he cannot stop other people from making alternative, competing recordings of the same music. The people who do so are then required to pay him royalties (at a fixed percentage rate specified by the law), but he has no ability to stop them making recordings. So once one orchestra has recorded a piece of music, every other orchestra in the world can legally record the same piece of music.

    In the case of photographs (not sure about other visual images) the copyright law is of the sort that applies to recordings. That is, the copyright holder has the right to control who copies the photographs, and how much is charged for the right to copy. On the other hand, if prints are sold (and prints often are sold) there copyright holder has no further control over what you do with the print (other than that you may not copy it). There is nothing stopping me from buying prints of art in the Metropolitan Museum gift shop and hanging them in a gallery in London – this is just not normally done because people want to see the originals. (At least, this is how traditional copyright law on images works – there certainly are moves afoot to try to assert more control over what you do with a copy after you buy it).

    However, electronic images make things complicated. In some sense, you are making a copy of an electronic image every time you display it on your screen, or indeed to almost anything with it on a computer. (The image is being copied from your hard disk into the video memory of your computer, for instance). Therefore, the copyright industry argues that the existing law (which controls copies but not use) essentially gives the copyright holder complete control over what you do with electronic copies of the work.

    The basic answer to the question of “Why is copyright law for medium X so different than for medium Y?” is that when technology has caused a new medium to come along, all the interested parties have sat down and negotiated what copyright law should be for that medium, and they have come up with very different answers for different media. The copyright laws that have been going on in recent years are not unrelated to this. What were different media at the time the laws were written have all sort of merged into one another because everything has turned into ones and zeros. And making a copy has become much easier.

  • Brian,

    Paintings (or pictures) do not stay in copyright for ever. Artistic works are only protected by copyright for a period of 70 years after the death of the originating artist.

    So using a copy of the Mona Lisa, or The Laughing Cavalier or La Primavera on your culture blog would certainly not infringe the law.

    However, what people often do is simply use other people’s photographs of great works of art and, of course, there is copyright in the photograph.

  • Malcolm

    On the purely technical issue of colour reproduction, this is a solvable problem.

    The computer image file of a given picture is consistent, and will look the same to each computer you use to view it. The problem is not in the computer, but in the monitor (or TV) that is the display device.

    Each display device has its own idea of what “blue” looks like (not just blue, any colour of course). This means that on your own PC monitor, all the pictures you look at display slightly differently to when I look at the same picture on my monitor – and do so in exactly the same way and to the same degree. It’s just the way they’re made, and it’s very hard for it to be otherwise*.

    Happily, monitors are generally configurable crudely, and modern graphics cards are extremely configurable, if you know what you’re doing. This allows you to correct your display manually so that it gives the same look as mine does. Invariably, however, you will have to do this yourself.

    Being the sort of person who likes to build his own PC from parts, I bought my graphics card separately from the rest of the PC. In the box the graphics card came in there was a strip of blue card. Written on the blue card was a reference code (I think it was a Pantone number, iirc) that refers to a very specfic wavelength of light that matches precisely the wavelength of the blue on the piece of card.

    What you then do is to call up (what is supposed to be) the precise same type of blue on the computer screen and place the card on the screen. They don’t match, because the monitor configuration is slightly off. However you can fiddle with the controls of the graphics card until they do match. When you’ve done that, you know that every other colour will also match the defined “standard colour”, which means that the colour coming out of your screen in any given picture will be the same colour coming out of any other screen looking at that same picture —provided they’ve gone through the same process with another piece of blue card with surprisingly high-tech ink on it.

    So it is possible. It’s just a bit tedious, like my post.

    *Well, there could be a worker at the monitor factory doing this configuration too, of course, but there isn’t because most people don’t care about precise colour reproduction, and the ones that do presumably prefer a piece of high-tech card so they can do it themselves and know it’s been done right.

  • Antoine Clarke

    Brian, if I am right in thinking that you did not intend to make a racialist comment about the impact of immigrants:

    (rather than the incoming tide of brown people that threatens to bring all of civilisation to a standstill).

    you might consider using something like 😉 or 🙂 to indicate you are kidding. Unlike a telephone conversation, someone 2,000 miles away and 2 years from now will not realise that you are not in fact cunningly arguing for immigration control.

  • Brian, you might want to look at this archived conversation on same topic (and I heartily recommend this blog, too)

  • Tim

    The National Gallery in London has a place in their shop where you can get fantastic reproductions of any of their paintings. There is no technology problem thought a lot of work went into the scanning and colour balancing of the images. But they are not cheap – big pictures are upto £150. The printers can use a canvas type paper and those reproductions are wonderful but the National Gallery will only use plain paper – apparently they are worried that you will go and buy a reproduction, sneak into the gallery with your Stanley knife and do a quick swop!

  • Guy Herbert

    If fear music copyright is even more hideously complicated that Michael Jennings suggests. There are different levels of control open to composers and their publishers in different jurisdictions and over different rights.

    The reason for this is that copyright is a creature of business and legislative practice and there’s really no uniform theory underlying the worldwide protection of intellectual property. It is a classic example of how unnatural an “obviously” natural right (to the product of one’s own intellectual labour and/or to control the use of one’s physical property) is when examined closely.

    Coincidentally Lawrence Lessig has an interesting piece on the way copyright develops in the current Wired.

  • Malcolm

    you’re partly right – in the incredibly unlikely event that everybody had good calibrated monitors, everybody would see the same colours from the same image file. Roughly, allowing for the fact that they’re all viewing under different lighting conditions with different-coloured other things on the screen around the picture that also affect colour perception.

    That still doesn’t mean you’re anywhere near the colours of the original painting, though. Paintings – and the real world generally – have colours that simply can’t be (a) recorded by any available film or digital camera sensor or (b) represented in any 24 or 48 bit colour space. This is partly becase of gamut issues – colours that are completely outside the range a sensor can record or a monitor can represent – and partly resolution – most (all?) current monitors show 24 bit colours: there are certainly more than 2^24 possible colours, I wouldn’t rule out the possibility that the eye can actually see finer colour gradations than 24 bit can represent.

    Plus physical resolution (dots per inch) of course – current monitors are pathetically low – 72 to 100 dpi. 200 dpi monitors, which are somewhere close to what you need for the dot strucuture not to be obvious, exist but are *very* expensive. Of course they’ll be cheaper one day, but they’ve existed for at least two years and they haven’t dropped much yet.

    All in principle fixable by technical progress in the design of digital sensors and monitors (and everything in between) – but in practice highly unlikely to be fixed any time soon, not least because hardly anybody really cares about it.

    Plus the fact that, as Dale pointed out, an oil painting is very much a three dimensional object.

    Antoine, I hope you were kidding when you suggested people writing for samizdata should start worrying about whether their obvious jokes might be seen as politically incorrect by some future idiot.

  • As David said – museums do no have copyright in the (old) paintings as such; what they do have is the right to set conditions on whether and how they can be photographed, and copyright in their own photographs and other reproductions.

  • Also, I wonder how Naxos Historical and the whole of the rest of the historical recordings mini-industry – there are lots of little specialist labels doing this stuff these days – actually operates? I mean, recordings may not be copyright any more, but I assume that doesn’t mean anybody can just walk up to Sony or whoever and demand access to the master tape?

    So whoever has the physical tapes can presumably still make money renting them out to Naxos & co – or choose not to if they don’t want to. I am not a copyright lawyer, but I assume there is a difference between copyright over the information contained in a recording, and actual ownership of a physical object such as the master tape.

  • Guy Herbert

    It is certainly conceivable that you could own the physical master without the corresponding “master right” to make copies from it.

    The whole idea of a single master derives from an earlier age when reproduction was degradation. In an age of “digital remastering” ownership of the master, too, has moved from physical fact into the realm of legal construct.

  • I agree we’re heading in that direction, Guy. Not sure we’re quite there yet in all cases. Brian mentioned paintings and historical musical recordings; for both of those, access to the physical original still matters if you’re serious about making good copies. Some parts of the production chain are still lossy.

    I’m sure Naxos now have duplicates of the things in their historical recording series that contain all the information they are currently capable of extracting from the orignal tapes, and quite possibly more information than they are currently capable of getting onto a CD. But (a) I’m sure they’re not going to be lending *their* remaster “masters” out, so anybody else who wants to have a go still has to talk nicely to the holder of the original tape; and (b) I wouldn’t rule out somebody else being a better remastering engineer than the guys at Naxos, or some breakthrough in the technical state of the art that makes it possible to get more information off of the tape than Naxos did.

  • Forget color rendering on large computer screens. Why can’t museums simply display high-quality life-size copies ? Accompanied by a little sign that says (original for this work at museum so and so). After all, there is about one chance in five that the Mona Lisa you looked at the last time you visited the Louvre was the real one. Many museums hang excellent copies of originals. Sometimes for safety reasons, or when the original is being repaired or on loan.

    So why wouldn’t/shouldn’t/couldn’t the NY Metropolitan Museum display a good Mona Lisa copy ?

  • Johnthan

    In photography, copyright is frequently defended fiercely. Take the big photo agencies like Reuters, UPI and AP. If one of their photos is used without proper retribution, expect to be hit by a firestorm of legal bombs.

  • Johnthan

    In photography, copyright is frequently defended fiercely. Take the big photo agencies like Reuters, UPI and AP. If one of their photos is used without proper attribution, expect to be hit by a firestorm of legal bombs.

  • Guy Herbert

    That agencies (and stock libraries) defend their rights in photos more vigorously than others do (or can afford to) neatly illustrates the point about the growth of copyright and other IP: it is to do with defending the economic interest of creator or owner. (The French model, as I understand it, makes this explicit: (c) there identifies an existing economic right of exploitation as distinct from original ownership or the creative control embodied in droit morale.)

    The market in a particular form of IP generally precedes its legal protection. Consider semiconductor mask rights, character rights, and TV format rights, which are all newish and at diffferent stages of the lifecycle.

  • I almost liked that better the first way, Johnthan! Not sure exactly what it would mean to use a phote without proper retribution, but it fits with their normal mode of operation.

    Oh, and the photographers’ various professional associations have made things “RIAA level nasty” for quite a while in the copy-shop business (my wife worked at a Kinko’s last year). They run ramdom stings where they do into a copy place and ask for help making copies of photos.

    You know, like studio shots where the copyright on the back is to the photographer, and they make you buy all the prints from them?

    Anything other than “no, I can’t help you, that’s copyrighted” and BAM!!! They serve you and store papers right on the spot. And look, there’s that nice security camera footage for them to subpoena!!

    Very, very nasty business, and as the store she worked at was right up the road from a large university (UofA), she got hell all the time from folks with legitimate fair use needs whom she couldn’t help.

    Their corporate policy was “we can’t determine fair use (only a court can), so if they come and self-serve, turn a blind eye. But once they ask for help and you see it’s protected material, they are out of luck”.

    If the materials in question were obviously education related, she’d tell them to go to an on-campus copy center, which would let them make fair use copies.

    This all started years before the RIAA started panicing about Napster and friends.