What is the copyright law pertaining to photographs of 19th century paintings where the painters have been dead for over 100 years?

Question

I want to publish a book where I pair my modern day photographs of ruined abbeys with paintings of the same abbeys by 19th century artists. The paintings are presented as photographs found on the internet. All the painters are credited by name, even though they have been deceased for over 100 years. The photographs have been cropped to remove any framing materials and their color balance has been adjusted to correct for color errors obviously resulting from reproduction on the internet. There is nothing in the images to evidence any creative input by the photographers.

Do the photographers who made the images of the paintings, or the people who hired them to do so, have any rights to the images?

Answer 1

Do the photographers who made the images of the paintings, or the people who hired them to do so, have any rights to the images?

The general rule is that they do have rights to the images.

In U.S. copyright law, the photographs are subject to the copyrights of the people taking them, even though the subject of the photographs is in the public domain (unless the photographs were taken by a U.S. government agency employee as work for hire, since U.S. government works are in the public domain).

There is an argument that the photographs are so non-transformative of the underlying painting that they should not be protected, in cases where they are basically just a straight on photo of a painting hanging in a museum, and hence shouldn't be eligible for copyright. There is also an argument the use of the photographs in the way described in the question is "fair use" since it is necessary to engage in artistic criticism.

But, for the most part, these aren't winning arguments in this context, although there might be isolated cases where they could prevail.

The question of which country's law applies is also non-trivial. Is it the place where the photo of the painting was taken? Is it the place where the photographer of the painting is domiciled? Is it the place where the alleged infringement is taking place?

The alternative approach, which most big publishers would insist upon, would be to get permission from the owners of the copyrights to the photographs of the paintings, possibly in exchange for a flat fee or percentage royalty. I don't practice in that area enough to know how likely it is that permission would be granted, and if so, on what terms.