RE: Re: Fwd: [AAUP-R] between the National Portrait Gallery and a Hard Place

Robert Panzer wrote:
> Interestingly, my recollection is that in Corel v. Bridgeman
> (case says that there is not enough originality inherent in a
> slavish photographic reproduction of a two-dimensional work
> of art for the reproduction to qualify for its own
> copyright), the judge stated that there would be no copyright
> in the reproductions under UK law as well as U.S. law. He
> did this analysis since Bridgeman is a UK company.

While Bridgeman decided that a US judge thinks that a UK judge would not find copyright subsisting, the US judge didn't have a clue. The test for originality in the UK is nothing like in the US. Originality in the UK is about who can sue not whether a work exists! I severely doubt a UK judge would actually decide consistent with Bridgeman. So while Bridgeman is very relevant for publication in the US, it is completely irrelevant to publication in the UK (or Australia, Canada ...). Note that the antiquesportfolio.com case found copyright subsisted in a pretty ordinary photograph (and that a thumbnail was an infringing reproduction in contrast to Bridgeman).

The problem with originality in this situation is that the person who has standing to sue in this situation is the photographer, not the gallery (unless the underlying work on which the adaptation was made can be proven to have been transferred to the gallery), not whether the photograph is a protected work under UK law. It almost certainly is. While it may be prudent to find out the source of the work used by the graphic artist, the plaintiff (the gallery) has the burden of proof in this situation and it is still only relevant if the colourized version is considered to be a reproduction not an adaptation or the courts find infringement in the process of creating the new work.

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