November 24, 2004

Using photographs of public domain paintings

I've been wondering for a few months now about the use of internet published photographs of public domain paintings for both personal and commercial use. There are those who claim that the photographer holds a copyright (after the painter passes away) and those that claim otherwise. Here's a legal point of view, courtesy of nolo:

A photographer had to take a picture of the artwork for it to appear in the book -- and the photographer may claim copyright in that picture. As a general rule, you can probably copy a photo that is a slavish photographic copy of a public domain artwork. While the area is changing quickly, that is the latest legal word according to a recent court case, Bridgeman Art Library Ltd. v. Corel Corp., 25 F.Supp.2d 421 (SDNY 1999). However, this rule may not apply to photos of three-dimensional works such as sculpture or photos of artwork where the photographer exhibits some originality in the lighting or composition, for example, a photo of the Mona Lisa that is lit it in such a way that only Mona Lisa's face was visible, not the background. Not having glimpsed the angels of your particular concern, I cannot pronounce about their originality in this regard.

Here's more on the Bridgeman Art Library case from nolo.

At great expense, a company called the Bridgeman Art Library Ltd. obtained from several art museums the exclusive right to make and sell photographs of hundreds of public domain art masterpieces. Bridgeman licensed to the public both regular art photos and digital photos on CD-ROMS and through its website. A company called Corel Corp. obtained more than 150 images from the Bridgeman collection and published them without obtaining Bridgeman's permission. The images were included on clip art CD-ROMs and placed on the Corel website where they could be downloaded for a few dollars each, far less than Bridgeman charged. Corel was directly competing with Bridgeman and costing it licensing fees. Bridgeman sued Corel, claiming the photos were copyrighted, even though the paintings they portrayed were in the public domain. Bridgeman ultimately lost its suit, but whether photos of public domain paintings are themselves in the public domain remains a gray area. Bridgeman Art Library Ltd. v. Corel Corp., 25 F.Supp. 2d 421 (S.D. N.Y. 1999); see Chapter 5, Section N2.
The site nylawline, which doesn't seem to be up, has a clearer discussion on what exactly happened.
For a work to be copyrightable, it must be fixed in a tangible form and be an “original” work of authorship.”[i] The United States Supreme Court has stated that “[t]he sine qua non of copyright[ability] is originality” and that “[o]riginal, as the term is used in copyright, means only that the work was independently created by the author . . . and that it possesses at least some minimal degree of creativity.”[ii] When a photograph is created very objectively and is almost identical to its subject matter, a question arises of whether the photograph has sufficient “originality” to be copyrightable.

It had been believed that almost any photograph had such “originality.” In Bridgeman Art Library, Ltd. v. Corel Corp., however, Judge Kaplan of the Federal District Court for the Southern District of New York held that a group of skillfully rendered photographic depictions of public domain art works were not “original” for copyright purposes.[iii]

Bridgeman Art Library acquired the right to license photographic transparencies and digital images of public domain works. It sought images that copied the underlying works as faithfully as possible without any addition, alteration or transformation. Corel sold a CD-ROM containing images controlled by Bridgeman. Bridgeman sued, claiming ownership in the copyrights of the transparencies and digital images and alleging copyright infringement.

Although the Court recognized that faithful photographic replication of the original works required substantial skill and effort, it held that Bridgeman did not own the copyright in the resulting images.[iv] “Slavish copying” of another work, even where it reproduces the work into a different medium, does not have sufficient “originality” to be copyrightable.[v]

Notwithstanding Bridgeman, courts still have required only a minimal level of “originality.” In Eastern America Trio Products v. Tang Electronic Corp, for example, Judge Kaplan also held that defendant infringed plaintiff's copyright by using plaintiff's photographs in its own catalogs.[vi] Defendant claimed that the images were of common, industrial items and lacked sufficient “originality” to be protectible. The Court disagreed, finding “originality” in the lay-out, angles and lighting of plaintiff’s images. The Court noted that there is a “very broad scope for copyright in photographs, encompassing almost any photograph that reflects more than 'slavish copying.’” “Originality” may be founded upon other factors such as choice of subject matter, timing, and selection of camera, film or lens.[vii]

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