Is it legal to use an old painting on the cover of a book?

Can I put an old painting on the cover of my book without violating the law? AFAIK the copyright for a painting expires after 70 years. Hence, if a painting was created in 1874 and 70 years expired in 1944, it should be legal to put in on a cover of a book to appear in 2014. Right?

As said below, it's death plus 70 years, not just 70 years. So, your book, if you published it today, will fall into public domain not 70 years from today, but 70 years after your death.

The good news is that if it's cleared to appear on Wikipedia/Wikimedia, it's in the public domain. Check the legal page for it: en.wikipedia.org/wiki/Proserpine_%28Rossetti_painting%29#/media/…Proserpine-_Google_Art_Project.jpg

7 Answers 7

The copyright may have expired after 70 years. But, depending on the law of the relevant country, the owner of the painting (or any other object) may have the right to forbid the commercial use of reproductions of his property.

Similar to a "model release", with which a human model allows a photographer the usage of her likeness, there is a "property release" for photos made on or of someone's property. Here is the one from Big Stock Photo.

In their gallery rules, published on their website, the Tate states that:

You can take photos in the gallery unless it is stated otherwise. Photography must be for personal, non-commercial use only.

This means that any image (= photographic reproduction) you might grab from the web was either made for non-commercial use (scholarly publication) or for a specific commercial use (excluding yours).

If you want to use an image (= photo) of one of the paintings in the collection of the Tate commercially, you must use their image licensing service at www.tate-images.com, which will also provide you with an image file you can use in the publishing process. If you register you can calculate the price for your usage.

I'm not a lawyer, and this is not legal advice.

Personally, I think this is a giant rip-off, allowing copyright to last indefinitely. Nevertheless, I believe @what is correct. However, if you can find a book older than 70 years which contains a photograph of the painting, then that photograph should be out of copyright. But IANAL.

@dmm I believe you would need a photograph that was made before the current owner came into ownership, and by a photographer who is dead more than 70 years. I'm not sure if the quality would be good enough for a book cover, though. Basically, I'd check with a laywer, if the Tate's licensing fees were higher than the cost of a lawyer (Germany: around 150 Euro). Or just pay those licensing fees, because after all the Tate preserved that painting, and I'm grateful that I can still view it and would like to contribute to that effort.

@dmm Copyright laws were developed to prevent rip-offs, not the other way around. I am surprised there are expiration dates for the rights to a work of art.

@DP_ "Depending on the law of the relevant country", anything is possible, such as jailing you for writing a book. But such laws are usually enforceable only within the relevant country. And since the OP did not specify the country, there is nothing to be said, other than general rules implied by international copyright treaties in most countries. When selling entrance tickets a museum may forbid you to take pictures on the premises, or limit their usage. Abusing this may be a contract violation, but not a copyright violation. Such prohibition does not apply to copies obtained otherwise.

Also, just as model releases are only legally required if the expected use of the photograph could be seen as damaging to the reputation of the model, AFAICT the requirement for a "property release" only extends to situations where the use may be damaging to the reputation of the owner of the property. I don't see how that applies here.

The answer of @what is not quite correct, though his comment contradicting his own answer is. But I realized that they were the same person only after writing this answer. I will still include it as it may possibly clarify the logic of this.

Copyright last up to 70 years post mortem auctoris (that means "after the author's death", but Latin is so chic).

Regarding your painting, the painter was most likely dead before the end of 1943, which puts the painting in the public domain on january 1st 2014. So you are OK.

Actually, my favorite painter, who happens to be Russian, is Wassily Kandinsky who died in december 1944, and will enter the public domain next january.

Checking wikipedia, Dante Gabriel Rossetti died in 1882. So you are pretty safe on that part.

As long as the painting is under copyright, you cannot use publicly without permission any copy (reproduction) you may own or find. This is true even if you are the actual owner of the original painting. You own the object, not the right to copy it.

If it sits in your living room, you can publish photographs including it only if it is clearly part of the surrounding rather than a major component of the photograph.

My institute could not publish photos of its main building, because they had forgotten to include that right in the contract with the architect.

When the work enters the public domain, these restrictions fall. The owner may have the right to forbid people to take photograph of his property, but cannot forbid using existing copies, or making secondary copies from them. There is ownership, but no longer a copyright. Pretty logical, whether you like it or not.

In principle, ownership of art works has nothing to do with copyright, though Europe has included one aspect in its copyright legislation with the so-called droit de suite. There are a few other cases where a copyright legislation can concern ownership; they are usually related to moral rights, which may have no time limit. So whether the owner can forbid you to make copies of his property is a matter of local legislation.

It is quite possible that using a picture of a painting illegally taken in Tate Gallery would be illegal in the UK but legal in Russia. And I have no idea whether Tate would be able to sue you when you come to UK if they cannot prove you were the one who took the picture.

However, you have to be careful. If a reproduction of the painting has been made by a professional with specific care, he can claim that his copy is an original work . as a particularly good copy of the painting, and consequently claim a copyright on his copy. This is of course disputable in court, as he has to show that his own creativity shows in the quality of the photo, that it is an artwork on its own, that other people would have done it differently. Courts may take it or leave it. Copyright is supposed to protect only original work, and a photocopy of a work is in no way original work.

Gallery claims over reproduction rights of the (average quality) copies they sell are sometimes very debatable . but who wants to go to court.

IANAL - not a lawyer - this is no advice