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Photographic Depictions of 2D Art are in the Public Domain

In the United States, copyright is founded on the notion of authorship. In situations where little or no authorship is involved in creating a work, no new copyright is granted.

For Project Gutenberg’s purposes, this means that photographic reproductions of two-dimensional art, even recent ones, are not copyrightable. This includes things such as:

• Large-size lithographs of art work (such as posters)
• Art books with prints of various art work
• Photographs of works appearing in otherwise copyrighted works (such as a new textbook)
• The original artwork itself needs to be in the public domain, in order for this to apply. So, if a contemporary painting is copyrighted, then the photograph would also be copyrighted. Conversely, for works in the public domain, photographs of those works are also in the public domain.

This applies to two-dimensional art work – things such as paintings, posters, murals, and so forth. (Yes, paintings have 3D elements but are primarily two-dimensional.)

This finding is based on the U.S. case, Bridgeman Art Library Ltd. v. Corel Corporation (1999). There, a U.S. District Court ruled that photographic reproductions of two-dimensional works of art, where the goal is to make as accurate a reproduction of the work as possible, were not ‘original works,’ and therefore not copyrightable.

By no means does this apply to all photographs of artwork, but only those where the artistic capacity of the photographer in choosing angle, composing the subject matter, selecting lighting, etc., has been subjugated to the overarching goal of reproducing the artwork as accurately as possible. As such, the same finding might apply to other types of work or art.