> I don't think that's quite true.  A lot would depend on whether the
> photographs you used were in the public domain or not.
> 
> For example, let's say that I used photographs taken by Photographer A
> two years ago of an outdoor sculpture that was created in 1829 by
> Sculptor B, and painted a mural from those photographs.  Since the
> sculpture was in the public domain Photographer A was not infringing on
> any copyrights, but in creating a derivative work from Photographer A's
> work I was infringing on Photographer A's copyrights.
> 
> However, if I had taken the photographs and then painted the mural based
> on them, I would not be infringing on anyone.

Yes, that's so, certainly in the case of using ones own photographs to
replicate the original public domain work.

Using someone else's copyright protected photographs is more of a grey area
- which is why I chose a sculpture, which makes it a bit more black and
white.

Say that you found a magazine article from a few years ago of an 1829 statue
that had since been placed in an art museum collection.  The article had a
had a reasonably extensive set of photographs (still in copyright) and from
those you produced your own version of the sculpture (not something I could
ever do....).

In this case it wouldn't be a derivative work, as you weren't copying the
specific "viewpoint" of any single photograph.

But if you took just one of the photographs and produced a painting of the
sculpture which reproduced fairly closely from the photographs the shadows
falling on the sculpture, the colours and hues of the background, the
particular angle of view etc, then even if you tweaked it a bit, it would
still generally be seen as a derivative work (derivative of the photograph
that is).

Derivative works is a whole grey fun areas for the lawyers - see Jeff Koons
law cases of his derivative works - he wins one, loses one - in very similar
situations. Or Richard Prince's blatant rephotographing of Marlborough ads
with apparently no regard for the original copyright... lauded as very
expensive art.


tim a

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