Can I Publish This Photograph of the Mona Lisa?

by Jack Lyon

In a departure from my usual technical stuff, I recently finished writing a rather specialized book on Christian symbolism, featuring numerous works of art from the Middle Ages and Renaissance. Rather than publish the book myself, I decided to go with a publishing company that has considerably more marketing mojo than I do. And of course, that’s when the fun started:

Dear Mr. Lyon:

We would respectfully request that you please send documentation of your permission(s) to use third-party images and a list of the images for which you feel permission is not required. The list should include (1) the title of the image, (2) where the image can be found online, and (3) why you feel permission is not required.

Here is my reply:

I respectfully decline your request as unnecessary. The images I’m using are in the public domain.

The publisher’s representative replied:

If I take a photograph of a Leonardo da Vinci painting, I own the copyright in that photo. And even though it’s a photo of a public-domain item, you still need my permission to use my photograph.

So what do you think? Is the publisher’s representative correct? After all, that’s the common understanding. But actually, it depends on the nature of the photograph. In both the United States and in Europe, a photo that is merely a reproduction of a public-domain work (such as an old painting or stained-glass window) is not protected by copyright. To quote the U.K.’s Intellectual Property Office (based on the opinion of the European Court of Justice), “Copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’” (for more information, see Wikipedia).

In the United States, this issue was decided in the case of Bridgeman Art Library v. Corel Corp., in which the court ruled that exact photographic copies of public-domain images could not be protected by copyright in the United States because the copies lack originality (which, by the way, is the deciding factor).

So even if someone claims copyright in a photograph that reproduces a public-domain image, no permission is needed, because photos that are simply copies of public-domain works and lack any aspect of originality are themselves in the public domain. In fact, the more faithful the reproduction, the less originality there is. Wikipedia has an excellent example — a photograph of the Mona Lisa.

The whole point of that Wikipedia photo is to reproduce the Mona Lisa as accurately as possible — which is precisely to eliminate any elements of originality. In fact, dozens of such photos might exist, all indistinguishable from one another. And that’s why such reproductions are not protected by copyright.

Now, if you took a photo of the Mona Lisa that was not simply a copy of the painting but rather had its own original elements (such as special lighting or camera angle), that photo would not be in the public domain; you would indeed own the copyright in that photo. Here’s an example of an image that is not in the public domain: non–public domain Mona Lisa.

Here’s another version that would be under copyright because it includes original content: original content Mona Lisa.

Rich Adin raised an interesting question about this: Would a black-and-white photo of the Mona Lisa have enough originality to be protected by copyright? It would probably depend on how much originality the photo might be judged to have, and perhaps that would have to be settled in a court of law. Please note that just because you use someone’s highly accurate photograph of a public-domain image doesn’t mean the person can’t sue you for doing so, even though that person might lose the case.

Interestingly, contemporary photos of statues are always under copyright, as there’s no way to accurately reproduce a three-dimensional object in a two-dimensional photo. A photo of Rodin’s Thinker will always have elements of originality based on framing of the statue, lighting, focus, and so on.

But what about a photograph of artwork that’s not in the public domain? For example, consider the fine art of Carolyn Hutchings Edlund (who happens to be Rich Adin’s better half). If she takes a photograph of one of her paintings and posts it on her website, can I legally use that photograph as the cover image for my next book? No, I can’t. Why? Because Carolyn’s painting is not in the public domain. It’s her original creation, and she owns the copyright. Even though her photo of the painting may lack originality, her painting does not, and I’m not at liberty to use that image without her permission.

One question I haven’t addressed yet is how to know whether or not something is actually in the public domain — something that can be tricky to ascertain. In the United States, anything created before 1923 is generally fair game. In other countries, however, copyright terms may be more stringent, so care and caution are needed.

As the standard disclaimer goes, I am not a lawyer, and you should not consider this article as legal counsel in any way. Nevertheless, I hope that my experience with all of this might be useful to you in your own battles in the wonderful world of publishing.

Jack Lyon (editor@editorium.com) owns and operates the Editorium, which provides macros and information to help editors and publishers do mundane tasks quickly and efficiently. He is the author of Microsoft Word for Publishing Professionals, Wildcard Cookbook for Microsoft Word, and of Macro Cookbook for Microsoft Word. Both books will help you learn more about macros and how to use them.