Re: Fine Art Reproductions

On 04/03/99, Bernard Katz <bkatz[_at_]uoguelph.ca> wrote:
>
> The decision in Bridgeman vs. Corel cited by Tyler Ochoa is very
> interesting tome in that I believe it would have taken considerable
> skill and technical expertise to render the copy image so close in
> colour, (hue, intensity, etc.) to the original. Isn't that an
> argument for consideration as NOT being mere sweat of the brow?

Skill and technical expertise is NOT the same as originality. Yes, it takes a great deal of skill and expertise to reproduce a painting as faithfully as possible. But the application of skill and expertise in this manner does not add anything that can be called original.

"Sweat of the brow" is NOT limited to "mere" labor which anyone could have done. It includes labor which requires the application of skill and expertise. Neither type of labor adds originality.

This is one instance where the U.S. "public welfare" approach to copyright reaches a substantially different result than a "natural rights" or unjust enrichment-type approach.

I conceive of Bridgeman as being a trade-off for permitting private ownership of the original with no right of access to the public. Since the public is not assured of the right of access to the original that is needed to reproduce the original faithfully, they must be able to copy the photograph in order for the public domain status of the original to have any meaning. I might be willing to let the museum own a copyright in its own photo IF it granted access to any member of the public to photograph the original painting without charge (or with only a minimal one-time charge to cover its expenses in providing access), and assuming it would be possible to distinguish between use of the museum's photo and use of a photo taken by anyone else. But that would be a very different copyright scheme from the one we have.

I would be interested in a discussion of how other countries would approach this problem. I am especially interested to learn if ANY country has adopted a "public access" right for public domain works of this type.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Apr 05 1999 - 19:48:52 GMT