At 10:53 AM 4/30/98 -0400, Angela Putney wrote:

>I received an interesting "business proposal" today via
>e-mail (I also check the web site to see if it was as bad as
>it sounded). Parts of it strike me as being possibly
>illegal, or at least on very shaky ground. I was wondering
>what you all thought of it.
>
>The company, located in Germany, paints pictures, in oil,
>and sells them to individuals and businesses. Fine. They
>will take commissions. Fine.
>However, they will paint ANY picture. They specialize in
>reproductions. They claim that a "perfect reproduction is
>guaranteed," and can do Old Masters as well as contemporary
>modern art. This is the part that strikes me as not so fine.
>For the Old Masters I am not too worried if they are using
>modern paints and canvases since there is no longer any
>copyright on such paintings and even if they are as good as
>they claim, a simple check of materials would stop any
>passing off as originals. However, don't modern paintings
>still have a copyright? "A perfect reproduction" would be as
>much of a copy as a xerox is of a journal article. Much more
>work goes into the painting, but it is not intended to be a
>creative exercise or another artist's interpretation of a
>painting. This strikes me as being a possible source of
>modern forgeries as well.

Angela is correct. As long as a work is in the public domain (the case for
'old master' painting, etc.) anyone can copy it in whatever level of
verisimilitude they wish. It becomes a forgery only when it is being sold
as something it isn't (i.e. when it is misrepresented as an original).

The wrinkle in this is that for works of art, i.e. unique works of art, to
copy the original the copyist must obtain access to that original from the
owner, and that may be a problem. What is probably happening here is that
the "reproduction" is being made from a photograph or published copy. But
the copy photographs are themselves copyrightable items (say most museums
and photographers), so the resulting reproduction of a public domain
original ends up as a "copy" of a reproduction that is still under
copyright. If the owner of the source photo or reproduction can prove that
the painting reproduction is derived from the copyrighted entity, then
there can be an infringement suit since the painting reproduction is a
"derivative work."

For paintings that are still under copyright there is another problem:  Any
copy of the painting, of a reproduction of the painting made without
permission is an infringement -- except (and this applies to the above
paragraph, too) for those made under fair use. But the advertisement Angela
quotes offers goods that certainly will not qualify as fair use. Copyright,
today, expires in the US 50 years after the death of the artist, in Europe
it is 70 years generally.

But there is another issue, related to the above. Style seems not to be
protected. Considering copyright law, you can create an image in the
"style" of Picasso as long as the picture does not infringe on a particular
work of art. But "style" is a complex thing and has found protection using
trademark law. In one instance an artist's style was held to be "trade
dress" and couldn't be copied because it created confusion among potential
buyers of the works.  So we have come roundabout and are discussing forgery
again.  The Van Megheren (sp) "forgeries" of Vermeer were of this order. He
created "new" works in a style that some art historians felt would have
typified Vermeer had Vermeer painted any works during that period, a period
from which no known works date.

Robert Baron
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