On 6/24/99, Greg Ikonen <gikonen[_at_]venlaw.com> wrote:
>
> On Wed, Jun 23, 1999, Helen Dunne <hdunne[_at_]mov.vic.gov.au> wrote:
> >
> > On Tue, 22 Jun 1999, Linda Cullen <lcullen[_at_]sipress.si.edu> wrote:
> > >
> > > I just read with a great deal of interest an article about a recent
> > > U.S. District Court case (2nd Circuit Court of NY) wherein it was
> > > decided that owners of photos or transparencies of artwork in the
> > > public domain can no longer claim copyright to the photos and
> > > transparencies. The article entitled "Photos Lose Copyright Rights"
> > > by Joshua Kaufman, Esq. appeared in Art Business News, January 1999.
> > > Since the article is six months old, I wondered if anything has
> > > changed about this ruling since then? Will it go to the Supreme
> > > Court?
> >
> > I'm confused on this one... if the photographs were in the public
> > domain which I have interpreted to be copyright has expired, then
> > how could they lose copyright? If they were in copyright and the
> > owners of the photographs for some reason, somehow lost copyright,
> > then surely they would still have certain rights over their property?
>
> Helen:
>
> If I have it right, the case referred to is Corel v. Bridgeman.
> I haven't read the full decision, but I believe its thrust is that
> certain photographs of public domain artworks are themselves not
> subject to copyright protection, and thus freely available for
> copying, distribution, etc.
>
> Bridgeman has been strongly criticized on the ground that any
> photograph necessarily requires choice of lighting, lens, aperture,
> angle, etc., and thus satisfies the threshold requirement of
> "originality" for copyright protection -- irrespective of the public
> domain status of the subject of that photograph.
Bridgeman was decided the way it was because all these technical choices that Greg cites, in the view of the court, do NOT add up to the required modicum of originality. In fact, their purpose is to reduce originality and to reduce the differences (save those that unavoidably result from a change of media) between the original and the photograph. It concludes that skill alone is not sufficient to award copyright status.
I think a more productive challenge to Bridgeman might claim that while the stated purpose of the photographer is to create an exact replica (media differences forgiven), the photographer is not doing that at all, and that the techniques that the photographer claims he uses to produce a precise copy are in fact the result of aesthetic decisions that are made to convince the observer that the copy is faithful. What is really happening, this argument would claim, is that observers do not view with objective eyes, but rather through a veil of stylistic expectations. The photographer (even unbeknownst to himself) replicates, not the original, but the stylistic expectations. In other words the copy is an interpretation, just as (but in a different way) a drawing by Rubens after, say, Caravaggio, is also an interpretation of its source.
If such a thesis can be supported, it should follow that a discerning eye could write a stylistic history of photographic reproductions -- showing how such photographic images parallel stylistic trends.
Viewed from the perspective of an historian of style, I think such a thesis is not unreasonable. But, I admit that from the perspective of the ordinary viewer it must sound bizarre, for the purpose of the reproductive photograph plainly and clearly is to copy the source faithfully.
To follow this line of reasoning to its natural conclusion allows one to say that when reproducing, say, the paintings of Poussin, the photographic reproductions (intended to be faithful copies) have no copyrighted status, but when using, say, the same photographs to illustrate a stage in the history of photographic reproduction, the key features are precisely those "original" elements that are suppressed when looking at the photo as an illustration. In the latter example one should expect to get permission from the photographer, but in the former, not so. Oxymoronic?
There is an interesting law review article on the issue of the copyrightable content of reproductive photographs. It is rather long, but here is the citation:
Kathleen Connolly Butler. "Keeping the World Safe from Naked-chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions." in _Comm/Ent_, Vol. 21, no. 1 (Fall 1988).
_Comm/Ent_ is a publication of the Hastings College of the Law, University of California. The author spends considerable time going through the legal history of the notion of originality in case law and concludes that straight-on photographic reproductions (as in the Bridgeman case) contain no copyrightable content (as you can guess from the title).
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