recreating known pin-up paintings through the medium of photography

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  • If a photographer recreates well known pin-up paintings, such as the works of Gil Elvgren, by using models, sets and wardrobe which closely resemble the original art, is this considered a copyright violation? The intended use would be for self-promotion and magazine articles on the photographer and the model.
  • When deciding whether or not a subsequent work infringes an earlier work, there are two elements the courts look for -- ownership of a valid copyright and copying of the protected expression.

    To decide if there has been copying, the courts look for access and "substantial similarity" with the original. In this case there is little doubt about access, since you identify the original work whose elements would be imitated. So the issue is whether the photographs would be substantially similar to the original; have enough protectable elements been copied in the later photo. If the photos imitate the settings, costumes and poses of the original paintings, it seems likely to me that there would be substantial similarity. In other words, the photos would be deriative works in relation to the original paintings and would infringe the right of the original's copyright holder to authorize derivatives. But this is just as much a fact-specific inquiry, and therefore difficult to predict, as is fair use.

    Perhaps the best option for the photographer who wants to do this would be to see if there are still valid copyrights in the paintings. Given the dates during which Elvgren worked, for example, some of his work may have been registered but allowed to lapse after the first term and before 1963. Anything that was published with notice (and so entered its first term of protection) after 1963, however, was automatically renewed by the 1976 Copyright Act and is still protected. This possibility should be investigated very carefully since much of Elvgren's work was published by a large and sopisticated publisher which probably cared for its intellectually property carefully; you can not simply assume that material published between 1923 and 1963 was allowed to lapse after its first 28 year term of protection.

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