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  • Hi.

    I am confused:

    According to Bridgeman Art Library v. Corel Corp. photographs of two-dimensional works of art (like paintings) cannot be copyrighted by the photographer. Does this mean that it is legal to photoopy paintings of artwork out of art books when the artist has been dead for more than 70 years, so long as I do not copy its presentation or arrangement of the artwork?

    For example, I notice in almost all books that contain pictures of two-dimensional art there is a copyright warning that states you cannot store, reproduce, or use ANY of the photographs used in the book. This seems to contradict the court ruling.

    Does this mean it is legal for me to scan a few works out of these books? or is their copyright claim over the photographs valid?

    Thanks in advance!
  • When someone takes a photograph of a painting or other artwork that is in the public domain, there must be some degree of creativity or originality for the photograph to be copyright protected. This could include things such as angle, lighting, tint, etc.
    Whether a photograph contains any originality is a subjective thing that, if the published decided to take you to court, would be up to a judge to decide. They may feel there is some originality, so it's a judgement call on your part. In general, the answer to your question is that the photos would not be protected (although you are correct that the arrangement or presentation could be), but this can't be a simple yes/no answer.
    Any art experts with more advice?
  • If I cut out twenty photographs of the same painting from twenty different books, the only way the photographers would be able to identify which photo was taken by who, would be if they could remember the size of the paper used in the book. The angle, lighting, and tint would all be virtually the same. The photos would be so identical that none of the photographers could confidently claim their own photograph. Where is the creativity? Why is this subjective? If lighting, tint, and angle are copyrightable then couldn't the above photographers sue each other?

    Not only that, by claiming copyright on photographs of two-dimensioal public domain artwork they are restricting the public domain and inhibiting its purpose. The Bridgeman Art Library v. Corel Corp already went over this, so why are they even allowed to sue? They wouldn't even know if its their photograph.

    Why isn't this a simple yes/no answer, then?

    -others please respond,
  • "Allowed to sue?" Anyone can file a lawsuit--it doesn't mean they will win, or it won't be thrown out, just that they can file. I personally agree with your reasoning--there's not really any way they can identify an image that is an exact replica as their own, and my opinion is that you can do this, but the possibilty still exists.
    I tend to take the same view as you--that this is okay and would do it, but I am not a lawyer and can't tell you yes, this has no risks and is completely without possibility of recourse by someone; I can only give an opinion. And I did say that if there is no creativity then they will not have a copyright claim. Do I think it's okay? Yes.
  • I'm really glad this question was raised and hope others will also chime in, because I admit to being somewhat mystified myself!

    My take on this is that the originality that arises from such things as camera angle, lighting, depth of field, etc. applies more to photographic reproductions of three-dimensional artworks, like sculpture or architectural works, than it does to photo reproductions of two-dimensional artworks. The Bridgeman v. Corel decision was pretty clear in stating that slavish copying of a painting via photographic reproduction lacks the requisite originality for copyright to apply. The court also cited the Feist decision to reject Bridgeman's "sweat of the brow" claim for copyright protection.

    But the Bridgeman decision was issued by a federal district court and never reached the appellate level -- from what I understand, in part because Bridgeman and the museum community feared a more authoritative affirming decision by a federal appeals court, or possibly, the Supreme Court. The following from Wikipedia's entry on the Bridgeman decision (http://en.wikipedia.org/wiki/Bridgeman_Art_Library_Ltd._v._Corel_Corporation) sums this up nicely:

    "Several federal courts have followed the ruling in Bridgeman, though it has yet to be endorsed specifically by the Supreme Court. Moreover, this case has not been cited by any appellate-level circuit court meaning that it has no mandatory legal authority and its persuasive legal authority, as a district court opinion, has not been confirmed. However, the Supreme Court's ruling in Feist v. Rural, explicitly rejecting difficulty of labor or expense as a consideration in copyrightability, seems to support the fundamental reasoning behind Bridgeman."

    So why do you still see copyright notices on reproductions of artworks in, for instance, art history textbooks? First of all, I've always taken the publisher's copyright statement, usually included with publication info on the reverse of the title page, to apply to the work as a whole -- the combination and selection of images, together with accompanying interpretive text. So if I were to create a Web site or Powerpoint presentation that reproduced a number of the (uncopyrightable) 2-D reproductions of public domain artworks included in the book, and if I arranged them in the same way as the book (e.g., according to the same historical or stylistic breakdowns), even if I didn't reproduce any of the text (arguably the most "original" element contributed by the book's author or publisher), I could be found guilty of infringing the *book's* copyright.

    But if you flip through any art history textbook you'll also see copyright notices provided as caption info to some of the reproductions. Sometimes the copyright notice applies to the artwork itself, if it's a 20th-century work, but other times it clearly is meant to apply to the photographic reproduction. I assume this is because the publisher has licensed use of the image from some third party; perhaps such copyright statements or attributions are even required under the terms of the license. Publishers want to produce books that look as good as possible, of course, so they're willing to license high-resolution transparencies directly from the "rightsholder," and I'm sure they don't see any harm in including the copyright statement, regardless of whether or not the copyright is enforceable in court. (It may be misleading, but I don't know if the entity claiming the copyright could be sanctioned in any way if they post the notice even though they know the copyright is likely unenforceable -- just think of all those misleading copyright warnings that appear at the beginning of videos and DVDs.)

    So the bottom line is that I doubt very much that you would be sued for reproducing a slavish photographic reproduction of a 2-D artwork, unless your copying also involved use of other original elements, such as selection and organization of images along given lines. (Then again, how "original" is it to group images by century, for example?) I'd want to be reasonably sure, though, that the creator of the reproduction didn't introduce "creative variations" into their image in order to be able to distinguish their reproduction among others and to allow them to claim some degree of "originality" -- a tactic that was actually suggested by a Harvard Law School teaching fellow to the Museum Digital Library Collection, according to the following very interesting page I found via Google before posting this reply: http://www.panix.com/~squigle/rarin/corel2.html.

    Now I need to go back and reconsider a fair use analysis I went through today regarding the use of 2-D reproductions of public domain artworks by one of the instructors at my institution! Others please add their thoughts, esp. those more experienced with art and copyright...
  • Hello, all.

    RDavis has already discussed copyright of a *book as a whole*.

    I want to reiterate what RDavis suggested about copyright notices that appear next to *reproductions of two-dimensional art* in textbooks. Publishers collect images from several sources when they compile textbooks. RDavis is correct that some photo suppliers specify credit information in their licenses to reproduce images. Some image credits include copyright information.

    This may be misleading if a work of art is in the public domain and the photograph of it would be called a “slavish copy” of the work with no apparent originality. Personally, I can see how such a credit might raise awareness of a museum or a collection, for example © The Acme Museum of Art, Coyote Cartoon Collection. Yet I agree with the opinions above that this is misleading - and at odds with the Bridgeman decision - if the work is in the public domain and if the photograph of it could be called an unoriginal and “slavish” copy. (Please note that I am not a legal expert.)

    As discussed, these copyright notices do not necessarily mean that the image supplier owns the copyright to a piece of art. Nor do they necessarily mean the image supplier can claim copyright for a straightforward reproduction of a work of art. Nevertheless, publishers do what they need to do in order to acquire the best quality reproductions for their textbooks, including following contractual terms set forth by an image supplier.

    Back to Mead’s original predicament, I’m curious why Mead wishes to scan the art reproductions in the first place. S/He may have a fair use in mind. As you are all probably aware, the library and educational community is creating new structures to make images available for limited, nonprofit educational use. ArtStor, for instance, is a database that contains thousands of high-quality images commonly used in college art history classes. If you are affiliated with an educational institution, check to see whether you have access to ArtStor or another image database through its library.

    I hope this information is helpful. Other thoughts?


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