This was a nice idea that was tested and failed in court: https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel.... Making a reproduction with a camera does not create a new copyright because copyright protects creative expression, not skill with a camera.
Maybe if you have money to burn taking it to court. In practice if you want to publish it you get permission. The publisher is not going to go to court for you.
People can sue for anything they like and yet we still mangage to get up in the morning and do things. Bridgeman was 25 years ago — I would be curious if in that time, you can point to any cases where someone has challenged the use of a photographic reproduction of a public domain work? My hunch is no — not because people don't want to make money licensing things or enjoy going to court, but because most people actually agree with the premise of the decision.
My wife is an art historian, she's currently publishing a book and collecting permissions for all the images she wants to use. Why? Because if she doesn't the publisher won't publish her book and she won't get tenure. Do they care that there is a 25 year old legal precedent about how they could use the image for free? No, they do not. If it's an image the museum hasn't made publicly available on their website, then they still have to send it to you in order for you to use it and they're going to attach whatever terms and payment requirements to it that they want before they do that, no matter how much you tell them that it's a public domain image.
That sounds like it is entirely the publisher’s internal policy, not at all related to whether something is in the public domain or not.
A publisher can certainly impose their own restrictions before publishing something to lower liability, but that does not mean the photographs themselves are not public domain, as GP comment explicitly showed.
If you have any case law since then that proves otherwise, great, but an anecdote is not proof enough.
Publishers, documentary makers, etc. tend to go out of their way to cover their butts with written permissions. It's easier than having to deal with someone who thinks they're owed something after the fact.
Well, then your wife and her publisher are partially responsible for the continual erosion of our rights. The public domain is important and worth defending.
Just because someone has an image that is in the public domain doesn't mean they're obligated to share it with you. They can simply say no. Your options are:
1. Hire a photographer to take a photo of the artwork that you want to use. You have to pay the photographer, and you still need the museum's permission to access the work in a setting where you can take a good photo suitable for publication. You probably can't just snap a photo while touring the museum and use that.
2. Use a photo that the museum has and pay them and/or agree to their terms. Maybe you could take that photo and then share it because it's technically public domain, but guess what's going to happen the next time you want to use one of their photos then?
Well, they can't say no if you are already in possession of the image.
Certainly, they are under no obligation to take the photo, deliver the photo, host the photo on a server, but once you have the photo, there is no legal mechanism from preventing you from using it. Your arguments in this thread have gone: copyright protects photos of public domain works -> well people can still sue you -> well people don't have to give you access. You have arrived at the truth: museums don't have to take photos or share them with you. They own the physical artwork and can control physical access to it. I don't think that was in dispute.
It’s a moot point that you can use it without permission if you can’t obtain it without permission. This is a distinction without a difference.
That’s why it’s actually a big deal and a Good Thing that museums are making these images available online. It’s not as simple as “they were public domain anyway”.
