This month, TLC will look at the question whether you can use a (digital) reproduction of a work that is out of copyright without specific permission from the party that made the reproduction? First, as background, we will explain why we want to use such a work, and why we prefer or even need to use a reproduction made by someone else. Second, we will explain why explicit permission to use such reproduction might not be necessary as far as copyright is concerned. Third, we will explain why again we will err on what is perhaps the safe side of things, by trying to get specific courtesy permission from the party that made the particular reproduction that will be used in the Japan picture book.

Using a Painting as Illustration of 19th Century Orientalism

At the end of the 19th century, Orientalism was much in vogue. Orientalism entailed a certain fascination with (certain) aspect of cultures of the Levant, the East and the Far East by writers and artist in the West. (Edward Said’s book Orientalism is the book that introduced me to the subject.) An example of this fashion, of which Japonism was a flavor focused on one country, is Van Gogh’s use of an ukiyo-e by Hiroshige as the inspiration for his painting The Bridge in the Rain (1887). Likewise, the Amsterdam painter Breitner, a contemporary of Van Gogh, in his painting Girl in a White Kimono (1884) pictured a young woman dressed in a unmarried woman’s kimono, against a background of a Japanese screen. It is this picture that I want to use as illustration, and as Breitner died more than 70 years ago (in 1923), there is no longer any copyright on the images on his paintings, and they fall into the public domain. But that does not give me access to an image of the painting itself. Luckily, Girl in a White Kimono is part of the collection of the Rijksmuseum in my hometown, Amsterdam. However, having to go and take a picture of the painting so that I may use it as an illustration seems cumbersome. (Apart from the fact that I might have to agree to not photographing the painting when entering the museum; that and I am not sure it is on permanent display during the extensive construction work on the museum currently underway.)

Public Domain Work Equals No Copyright On Reproduction

Luckily, on its website, the Rijksmuseum has made available (medium-resolution) digital reproductions of the work. The Wikimedia Commons site has (what appears to be exactly) the same picture. But can I use that picture? Surely, it was made not so long ago that any copyright applicable to it may have lapsed? But does the picture, the reproduction, of the public domain work, qualify for copyright itself?

Wikimedia has this to say on the matter:

Faithful reproductions of two-dimensional original works cannot attract copyright in the U.S. according to the rule in Bridgeman Art Library v. Corel Corp. This photograph was taken in the U.S. or in another country where a similar rule applies (for a list of allowable countries, see Commons:When to use the PD-Art tag#Country-specific rules).

This photographic reproduction is therefore also in the public domain.

The Wikimedia commons wiki contains a page that lists the position of this issue in several jurisdictions, including the Netherlands. (This is assuming that our applicable jurisdiction is the Netherlands.)

OK In the Netherlands, photographic reproductions have been found not copyrightable in the Van Dale/Romme-arrest, a decision of the Supreme Court of the Netherlands.

The case cited as support dealt with the re-use of (parts of) a dictionary. (Contrary to the U.S. case cited, it is not on point for the re-use of reproductions of works of art.) Where a dictionary is in essence a selection (and presentation) of words naturally present in a language, the high court held in the Van Dale/Romme case that the collection did not qualify for copyright. Consequently, any re-use of it was not sanctionable under copyright law.

Let’s explain. Under Dutch copyright law — and I am not sure in how far this is a particular feature of Dutch law — in order to qualify for copyright, a work needs to have an own, original character and carry the personal imprint of the author. The boundaries of what qualifies as a work is at times debated, and at times extended. (Most recently, extending copyright to the design of jeans — discussed by William Patry here — and perfume; but not granting copyright to a series of police interviews, seemingly adding intent on creation of the creator (sic) as part of the test whether a work qualifies for copyright.)

What does this mean for the pictures that the Rijksmuseum takes of the paintings in its collections? Most likely, that a faithful reproduction of the work does not carry the own, original character and personal imprint of the author (in this case, the photographer), and consequently does not qualify for copyright. The Rijsmuseum’s claim that:

With the exception of storing one single temporary copy in the memory of one single computer and making one permanent copy for the end user, the information on this site may be used only after receiving written permission from the Rijksmuseum. This applies in particular to the multiplication and distribution of pictures and texts and to the framing of pictures and texts in other websites.

might not be correct. (But, there is no case law on point, so you might be testing the extent of the law here.)

But You Might Need or Want A Good and High Resolution Reproduction

Even though it is likely that you can use a reproduction made already available, a particular work might not have been reproduced in a readily available format, or the quality of the reproduction might not be sufficient for your particular purpose.

Consequently, I might want to obtain a higher quality image straight form the source, in this case, the Rijksmuseum:

For the commercial use of pictures, material suitable for reproduction can be ordered (against payment) from the Rijksmuseum’s Photo Archive.

This is getting expensive for a hobby project and it might limit me in how I licence the entire resulting work, but, if only out of personal interest, I am going to find out if and how much the Rijkmuseum would charge for this particular project. More news to follow.

In addition to the above, and perhaps more importantly, as the owner of the reproduced work in question might be unpleasantly surprised by finding a reproduction in a (semi)commercial work, you might want to ask for courtesy permission, copyright or not. This is what I will do in any event.

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Detail of Girl in a White Kimono.)