The applicable Federal Court decision is BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), as linked below.
http://www.nysd.uscourts.gov/courtweb/pdf/d02nysc/99-01031.pdf and also at
And the Federal Copyright Law is available at
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec= and elsewhere.
THE LEGAL REASONING - Copyright protection is provided for "original works of authorship fixed in any tangible medium of expression," including photographs and other graphic images. (United States Code, Title 17, Section 102) But we note that a work must be an "original work of authorship" in order for the Copyright Law to apply. Works containing little or no originality are not entitled to copyright protection. The person who paints an original painting or takes an original photograph is thereby creating "an original work of authorship," and this work is entitled to copyright protection. A photographic copy of such an original work, done with permission of the copyright owner, would be considered a "derivative work;" (Title 17, Section 101) and its entitlement to copyright protection flows from the entitlement of the original work which it copies, plus any additional originality embodied in the photographic copy itself. But if the original work is in the Public Domain, the photographic copy of it has no entitlement for protection flowing from the original, because the original itself has none, being in the Public Domain. Only if the photographic copy has some significant elements of originality in itself does it become entitled to copyright protection in its own right. Thus a mere "slavish copy," - a copy which simply reproduces the Public-Domain original accurately - is not eligible for copyright protection. And it, too, becomes part of the Public Domain, having no significant elements of originality in itself.
Be aware that the copyright owners of many newspapers, magazines, websites, books, and other media do frequently post copyright notices which seem to be claiming copyright on the entire publication and everything in it. Many casual users are thereby deterred from exercising their legal rights to use whatever Public Domain material may be contained within, unidentified as such. I have previously spoken against this deceptive and possibly fraudulent practice, particularly in my article here: http://www.loveallpeople.org/falseandfraudulentclaimsofcopyright.html
The Copyright Law specifically covers these cases in Title 17, Section 103(b), where it says, "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material."
So do not be afraid to jump in and freely use whatever Public Domain material you may find, wherever you may find it. This includes everything published in the United States before 1923, plus much more. And this specifically includes all "slavish-copy" photographs - regardless of when they were made - of art (or other photographs) which are now in the Public Domain. - (by Rev. Bill McGinnis)
TEXT OF THE APPLICABLE FEDERAL COURT DECISION is linked above and is also shown on the
HTML version of this message, which is located at http://www.loveallpeople.org/copyrightlawdoesnotcover.html
The decision is identified as BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) - Lewis A. Kaplan, United States District Judge.
Blessings to you. May God help us all.
Rev. Bill McGinnis, Director - LoveAllPeople.org