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Question: Are classical images such as Michelangelo's "Creation of Adam" and Van Gogh's "Irises" protected by copyright? Of course the artists are long gone, but do their estates or other institutions (the Vatican in the cast of the Michelangelo work) control any rights? What if I am using these images in a documentary?
Answer: This question raises many interesting copyright issues, which can be only briefly addressed here. Depending on when a work was created, it may have fallen into the public domain, which means it is no longer protected by copyright. After all, one of the rationales for copyright expiration is to enable the public to make use of works of art, e.g., to create new works, after the original owner has exercised her exclusive rights. (This argument has fierce supporters and opponents.)
A painting in the public domain does not require the current owner's permission (but keep in mind you might need permission to shoot on private property such as in a museum or in the Vatican).
It is often tricky to determine when something has entered the public domain, because American copyright law has changed significantly over the years. To figure out whether a work is in the public domain, you must know what year it was created and/or published, and use the applicable law in existence at that time. This process often presents even experienced copyright law practitioners with some complex considerations. See http://www.copyright.cornell.edu/public_domain/ for additional information.
Additionally, the use of the images in a documentary brings up an important concept for many artists: the fair use doctrine. When correctly applied, fair use can allow an artist to use copyrighted works without permission from the copyright holder. This concept is vitally important to documentary filmmakers. If you are involved in documentaries, you must read the Documentary Filmmakers' Statement of Best Practices in Fair Use (http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/), a short primer that is indispensable. Read it before you shoot another frame. No, really, do it now.
Finally, keep in mind that the explanation above is specific to copyright law in the United States. Both individual countries' copyright laws and key international copyright treaties may affect inquiries such as this question.
Deena Kalai is an entertainment lawyer with offices in Austin and New York.
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