That was probably clunkily stated. My point was not actually questioning who actually owns the copyright in the photograph - but rather the works exploitability in a derivative creative work.

Pretty much anything from this post has nothing to do with actual copyright ownership (unlike, say, the weird grey areas created by C-60) - but rather improving artists ability to exploit their own copyrighted works if they discover they contain other copyrighted elements.

Again my prime example (and it’s not hypothetical) is having a so-called “sub-marine” copyright holder surface who painted a mural that’s in the background of a film shot, well after the fact. I’m a big fan of a reasonableness standard that publicly displayed works are - to some extent - public. That certainly wouldn’t give me the right to sell postcards of a wall mural, but would provide some kind of “collateral damage” exemptions when it’s reasonably impractical to utilize a public space in a creative work without including someone’s copyright or trademarked works.

Copyright may be complex, but it isn’t always complex and it is unhelpful to assume that basic unequivocal facts are in dispute in every case.