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Life Arts

Must You Pay to Use Photos of Public Domain Artworks? No, Says a Legal Expert

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Sprigman: You can always sue. That's America.

Starr: But that forces the author to defend the suit, which could be costly, even if it's defeated, as in Bridgeman v. Corel.

Sprigman: The threat of a lawsuit may be the ultimate intimidation. The only thing I would say though to help people not to be so intimidated is that the copyright law provides for fee shifting, so that if you get sued for using a public domain image and you successfully defend the lawsuit there's a good chance that the plaintiff will wind up paying your attorney fees.

Starr: As we've noted, institutions are apparently avoiding initiating these suits.

Sprigman: That's true. The last thing they want is litigation because they are likely to lose. Can I guarantee that? No, because federal courts are notoriously inexpert in and uninterested in copyright. But if the case comes out in any way that it should under the law they will lose.

Starr: So what would you advise those who are hesitant to use photos of works that are in the public domain?

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Sprigman: They should know that under the law if the image is "slavish," a mere reproduction, a plain unadorned exact image, they can use it and do not have to pay anyone a licensing fee.

Starr: Thank you, Professor Sprigman.

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Bernard Starr, PhD is a psychologist,journalist, and professor emeritus at the City University of New York, Brooklyn College. His latest book is "Jesus,Jews, and Anti-Semitism in Art:How Renaissance Art Erased Jesus' Jewish Identity and How (more...)

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Mere reproduction Photos of public domain artworks... by Bernard Starr on Thursday, Sep 13, 2012 at 12:57:25 PM
I appreciate this article very much. I think we gr... by Daniel Geery on Friday, Sep 14, 2012 at 3:52:17 PM
or any kind of lawyer, but my experience with the ... by Gentry L Rowsey on Friday, Sep 14, 2012 at 7:22:05 PM
What do you mean by "the axe fell?" Did you downlo... by Bernard Starr on Friday, Sep 14, 2012 at 8:30:05 PM
And by "the axe fell" I meant that UCB's gallery -... by Gentry L Rowsey on Saturday, Sep 15, 2012 at 7:42:53 AM
It seems odd that the museum would restrict downlo... by Bernard Starr on Saturday, Sep 15, 2012 at 8:31:24 AM
having my hands full at the time with the incompar... by Gentry L Rowsey on Saturday, Sep 15, 2012 at 8:49:32 AM
I have been doing plenty of research into this mys... by Meryl Ann Butler on Sunday, Sep 16, 2012 at 11:31:21 AM
If a photographer takes an original photograph of ... by Bernard Starr on Sunday, Sep 16, 2012 at 12:33:58 PM
   The best things in life are free.... by Theresa Paulfranz on Sunday, Sep 16, 2012 at 1:11:43 PM