Re: Copyright in Public Domain Photos

On 6/22/99, 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.

I have noticed that people repeatedly refer to the Bridgeman v. Corel decision as being specifically about photography of "public domain" art. I think it should also be noted (lawyers, please correct me if I have this wrong) that the decision would also hold true for photography of copyrighted works of art. Admitedly, the photograph would be considered a "derivative" (as defined by copyright statute) of the copyrighted art and hence still be under the control of the copyright owner in the art. Nevertheless, it is important to recognize that the case is saying that there is not enough originality in a photograph of a two-dimensional work of art (regardless of copyright status of the work) to have a copyright of its own, derivative or not.

On 6/27/99, Robert Baron <rabaron[_at_]pipeline.com> wrote:
>
> I have a question: In their suit Bridgeman states that the Copyright
> Office registered their copyright and they use that fact as proof that
> the works are copyrighted. Is it true that when a work is accepted for
> copyright registration it does not imply that the copyright is valid?

It is my understanding that the Copyright Office will allow registration of almost anything (maybe Bridgeman will change that?), but their acceptance of registration in no proof of the validity of the copyright claim. That decision is up to the courts to decide when someone challanges it and the facts are presented. I don't know how many registrations the Copyright Office receives each year (10's of thousands?), but I cannot imagine how they could even know if someone else registered the same thing, let alone determine copyrightability. I think that is one of the ideas that comes out of the Bridgeman ruling. For example, 10 different people could have taken a straight-on photograph of say the Mona Lisa. Of the 10 images, let's say 5 appear almost identical to the average viewer. Would the Copyright Office or another court say each one of the images desserves its own copyright? What about a photocopy of the photo? It seems that many equate a change in media (which by definition usually means some sort of change that is imparted by the new medium, but not necessarily the controller of the medium) as good enough for a new copyright. Personally, I am amazed that people question the court's decision on Bridgeman. Which leads me to:

On 6/27/99, Greg Ikonen <gikonen[_at_]venlaw.com> wrote:
>
> 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.

Yes these choices must be made, but they are skills and craftsmanship involved in the "process" of getting to the final image. If my understanding of the essence of copyright is correct, a visual image achieves copyrightability for originality apparent in the appearance of the final image not in the process or procedure the photographer used to acheive the image. Processes get patents not copyright. If the photograph looks like the original except for changes imparted only by the change in medium, I see no justification for a new copyright.

Robert Panzer
Executive Director
VAGA (Visual Artists and Galleries Association) 350 Fifth Avenue
Suite 6305
New York, NY 10118
tel 212 736 6666
fax 212 736 6767
email - rpanzer.vaga[_at_]erols.com Received on Tue Jun 29 1999 - 04:30:36 GMT