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Can someone please help me get an insight into the use of images, specifically paintings from the 16th to 18th century that reside in churches, museums, etc., and how can one use them in a PhD dissertation without falling into copyright issues?

I am aware there are different options. For instance it is legal under German law to use a picture of a painting if it was taken by you and in a place that allowed it. However, I’m not sure about the following in German law:

  • Is it legal if I use an image from a book or catalogue?
  • Can one claim a “quotation” of a work?
  • Can one claim “fair use”, like in the US, since it is part of a critical/review/academic/research type of purpose?
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    Better to ask it on law.stackexchange.com I think – Gautier C Jun 21 '16 at 9:22
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    In Germany, there is a difference between "das Recht am eigenen Bild", i.e. photographing particular people, photographing panoramas (where people may be present, but are not the target of the photo), photographing art. It shows that the structure of IP law in Germany is not trivial (though mostly I found it more sensible than in the US). I am not a lawyer, and clearly you need proper law advice here. – Captain Emacs Jun 21 '16 at 9:23
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    IANAL. There is no "fair use" concept in Germany. If you are talking about a photograph of an old painting, the painting is probably not copyrighted any more, but the photograph usually is (up to 70 years after the death of the photographer). If you are talking about a scan, it should not be copyrighted. Consult your university's legal adviser. – Roland Jun 21 '16 at 10:26
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    @Roland It's not called exactly "fair use" in German law of course, but there's a lot of permissions codified in German copyright law that often even extend the US fair use permissions. – silvado Jun 21 '16 at 12:50
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    Fair use is only in US law. US law is also different from the law in some other countries because in the US, faithful reproductions of PD works are also PD: en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp. – Ben Crowell Jun 21 '16 at 16:00
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I begin with a ton of quotes from the German copyright law (Urheberrecht, original, English translation):

§ 15 Allgemeines

(1) Der Urheber hat das ausschließliche Recht, sein Werk in körperlicher Form zu verwerten; das Recht umfaßt insbesondere

  1. das Vervielfältigungsrecht (§ 16),
  2. das Verbreitungsrecht (§ 17),
  3. das Ausstellungsrecht (§ 18).

(2) Der Urheber hat ferner das ausschließliche Recht, sein Werk in unkörperlicher Form öffentlich wiederzugeben (Recht der öffentlichen Wiedergabe). […]


Article 15 – General

(1) The author has the exclusive right to exploit his work in material form; this right shall in particular include

  1. the right of reproduction (Article 16),

  2. the right of distribution (Article 17),

  3. the right of exhibition (Article 18).

(2) The author further has the exclusive right to communicate his work to the public in non-material form (right of communication to the public). […]


§ 51 Zitate

Zulässig ist die Vervielfältigung, Verbreitung und öffentliche Wiedergabe eines veröffentlichten Werkes zum Zweck des Zitats, sofern die Nutzung in ihrem Umfang durch den besonderen Zweck gerechtfertigt ist. Zulässig ist dies insbesondere, wenn

  1. einzelne Werke nach der Veröffentlichung in ein selbständiges wissenschaftliches Werk zur Erläuterung des Inhalts aufgenommen werden,

[…]


Article 51 – Quotations

It shall be permissible to reproduce, distribute and communicate to the public a published work for the purpose of quotation so far as such exploitation is justified to that extent by the particular purpose. This shall be permissible in particular where

  1. subsequent to publication individual works are included in an independent scientific work for the purpose of explaining the contents,

[…]


§ 64 Allgemeines

Das Urheberrecht erlischt siebzig Jahre nach dem Tode des Urhebers.


Article 64 – General

Copyright expires 70 years after the author’s death.

The questions relevant to your situation are:

  • Do you have to publish your thesis? If yes, copyright applies (§ 15) as you are reproducing and distributing the images or photographs thereof. If not, more lenient laws for private copies apply (§ 53).

  • Did the creators of the images die more than seventy years ago? If the images are from the 18th century or earlier, this should apply.

  • Did you take the photo of the image yourself? This is the most tricky question, as the photo may be a copyrightable work on its own.

    Last year, a court rejected a lawsuit against Wikimedia Germany which was about using a photo of a public-domain image. The court argued that this would be an invalid prolongation of copyright that surpasses the public domain and also mentioned that a purely technical reproduction is generally not considered to be copyrightable. You can read about this here and here.

    However, these links also mention lawsuits with other decisions and there is no general law about this situation.

  • Does § 51 (quotations) apply? – For the images, this is something that only you can decide. However, if the photograph is considered a work on its own, one may argue that you do not explain the photograph in the sense of § 51.

So, to summarise, there are several laws in your favour if you made the photographs yourself. Otherwise, you run a small risk of a copyright lawsuit, which I would consider rather low.

In general, I suggest asking the owners for their permission to be sure. Also, they may have high-quality photographs, which they can provide for you. After all, museums and similar places generally like if their exhibits are the subject of scientific works.

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I don't know if this helps, but the following is from the Europeana Public Domain Charter:

What is in the Public Domain needs to remain in the Public Domain. Exclusive control over Public Domain works cannot be re-established by claiming exclusive rights in technical reproductions of the works, or by using technical and or contractual measures to limit access to technical reproductions of such works. Works that are in the Public Domain in analogue form continue to be in the Public Domain once they have been digitised.

http://www.europeana.eu/portal/rights/public-domain-charter.html

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    The charter is a policy statement by a private organization. It has no legal force. – Mark Jun 21 '16 at 20:37
  • The charter is well respected within the cultural heritage sector. And if the desired material is available through the Europeana portal or the producing institution is a partner in Europeana, then these guiding principles would be understood. While there may be no legal force behind it, the user could be fairly certain that the institution that has partnered with Europeana and released material through them, would be less likely to try to bring legal action to exert their copyright claims. – Chad Jun 23 '16 at 16:12

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