Right, I know, I already covered that with my earlier photocopy of a page of text example. Since it has the same form and function of the original, it doesn’t get its own copyright. A photo of a painting falls into that category. I should have been clearer. I was still referring photographs of people and buildings and whatevers, not photographic reproductions of 2d art. And yes, I understand the argument of the article, I simply disagree.
The example in Bridgeman v Corel IS a great example of function being replicated. But a scan of a person is just like a photo of a person, and not a functional reproduction, in my opinion, and should gain the same protections that a photographic portrait does, regardless of artistic process.
Scans are NOT exact copies of anything. They are digital datasets, they have noise, they miss information, and at best, they are hollow, non-functional shells. Multiple passes are sometimes required, resulting in individual raggedy chunks. They need manual cleanup and assembly, and require a ton of human interaction to make functional. They are displayed on screen, most of the time, 2 dimensionally. Sometimes they are printed, which again, requires a ton of human interaction, creative and artistic interpretation and modification.
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Much of the same can be said of photographs. They are not exact copies of anything…There can be quite a bit of skill in the photographic reproduction of artwork. After all the photographer is trying to reproduce with just three pigments what an artist may have used 30 or more to create. It is not the imperfections that can make photographs of artworks copyrightable or not in their own right, but the intent of the photographer. Lighting, filters, and film choice can be used to either make as perfect a copy as the photographer is capable of or as tools to transform the original into a different vision. The latter creates a derivative work and the former creates a mere copy, no matter how much “sweat of the brow” went into making the copy as much like the original as possible.
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