Q. In the 18th and 19th centuries, before the invention and common use of photography, a book publisher could be granted rights to have an engraver etch a plate of an old master’s painting for printing purposes. May I take a digital photo of a 200-year-old printed etching, print the photo and legally sell it? I have only eight pages from the original book, so I can’t check the front or back pages for a copyright notice, although I do know the original artist and engraver.
A. The U.S. Constitution provides that Congress has the power to create a law for the purpose of providing copyright protection for limited periods. While the duration of copyright protection has been expanding over time, it is still limited. As of the date of this writing, the period of protection for an individual is the life of that individual plus 70 years. For a work created anonymously or under a pseudonym or a work created by an employee of a business entity, the period of protection is 95 years from first publication or 120 years from original creation, whichever period expires first.
Consequently, a 200-year-old work would not be protected by copyright. An individual could go to the original source (the actual engraving) and produce a digital copy without restriction, though it would certainly be polite to acknowledge the artist and engraver.
Note that the answer is different if you’re not using the original engraving. If you’re using a recent photograph of the engraving, it would be unlawful to copy the photographer’s contemporary work because the photographer has a copyright in that photograph.
Note: Copyright laws are subject to change. This article was originally published in the March 2008 issue of The Artist’s Magazine and reflects the laws in effect at the time the article was written.
Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.