Tuesday, April 29, 2008

Photographs of Public Domain works

Tonight in Manhattan, I am participating in a program that raises thorny issues of the scope of copyright in photographs of public domain works of art: are such photographs protectible, and if so under what circumstances and under what theories of copyright? What are the consequences for the publication of art books and journals? Here is the program:

Who Owns This Image?

Art, Access, and the Public Domain after Bridgeman v. Corel

Public Panel Discussion

Cosponsored by

Art Law Committee, New York City Bar Association

College Art Association


Creative Commons


Dr. Theodore Feder, President, Art Resource, Artists Rights Society

Honorable Lewis Kaplan, United States District Judge SDNY

Honorable Pierre Leval, United States Court of Appeals, Second Circuit

Christopher Lyon, Executive Editor, Prestel Publishing

William Patry, Senior Copyright Counsel, Google

Maureen Whalen, Associate General Counsel, J. Paul Getty Trust


Virginia Rutledge, Chair, Art Law Committee, New York City Bar Association,

Vice President and General Counsel Creative Commons

Who owns the Mona Lisa? In Bridgeman Art Library Ltd. v. Corel

Corp. (S.D.N.Y. 1999), Judge Lewis A. Kaplan ruled that exact photographic copies of two-dimensional public domain works of art are not copyrightable under U.S. law, because such images are not original. Yet nearly a decade after that decision, copyright in many such images continues to be asserted.

This program addresses questions currently debated across the worlds of art, publishing, and the law:

Should access to public domain artworks control uses of images of those works? When and how should custodians of public domain artworks exercise control over reproductions of them? How does contract intersect with copyright in the control of image uses? Does the image permissions hurdle play a role in the decline of art publishing, or are the complaints of critics overwrought? What is the nature of the public domain with respect to works of art?


Tuesday, April 29, 2008

6:30 – 8:00 pm


New York City Bar Association

42 W. 44th Street, New York City

The Great Hall

This program is free and open to the public; no reservation required. Seating is limited.


The Bellman said...

The NYSB website has Judge Leval out and Jude Posner in his place. Is that more current? I can't decide which super-heavyweight I'd rather hear!

William Patry said...

My post is more current: Judge Posner got sick. Judge Leval is coming although it is not clear whether he will get up and speak on the panel itself.

Anonymous said...

If someone makes a video or audio of this available, those of us who live far from NYC would be interested in knowing how we might get it.

Anonymous said...

Well, I know funding for museums is shaky but their attempts to drag public domain works back into copyright have been appalling. They hoard the works and attempt to claim copyright on any and all reproductions--including, in some cases, photographs they didn't take.

If a museum owns a work of art in the public domain, it owns the physical work of art, and no copyright interest it or photographic reproductions. However, it is pretty clear that the ruling that photographic reproductions of public domain works are not copyrighted is a lone beacon in a sea of copyright maximalism, one that took the trouble to recognize that copyright must involve actual creativity and that US copyright law doesn't grant copyright just because someone put work, effort or technical knowledge into making a reproduction

I imagine that some judges will find a way to claim that the technical work required to reproduced a 2D work of art as a scan is "creative" based on the "work" = "value" concept that so many people assume is the basis of copyright.

Perhaps the Museums will attempt their own version of a shrinkwrap license by placing verbiage at the museum entrance that states that as a condition of entrance you agree that no images may be reproduced, not even postcards sold in the museum shop of public domain images. (And this just goes to show another reason why the "For Promotional Use Only" CD case is so important--copyright law must not be allowed to be subverted by fiat.)

Michael said...

This is a problem for universities, who want to study works of art (manuscripts, sculptures, paintings) copyrighted by libraries and museums. As far as I'm aware, if I photograph a painting in a museum I own the copyright to that photo, but the museum owns the copyrights to their photos of their works of art. This helps them recoup much needed funds that they do not get from a stingy and increasingly apathetic public (and their government), but it puts those of us who care in a frustrating situation.

Michael said...
This comment has been removed by the author.
Anonymous said...

On a related note, The Art Institute of Chicago currently has a small exhibit about art and the public domain. The exhibit, "Copyright Law: Publishing Art and the Public Domain," which was put together by one of the museum's lawyers, runs through June 9. Here is a link to more information: http://www.artic.edu/aic/exhibitions/exhibition/copyright

Anonymous said...

Here's a question I would like to consider: would Bridgeman vs. Corel apply to reproductions of moving images? So would a 2000 restoration of a 1921 film have any components which could be ripped out and considered public domain?

Under Bridgeman, the implication to me is that you could remove the restored moving image, and as long as you didn't use the sound, you'd be fine.

(Not that was planning to do so, but hypothetically I mean).

I am involved in ebook publishing, and am constantly looking for public domain illustrations (mainly paintings). I understand the complications inherent in determining whether a painting is actually in the public domain (such as what is considered publication?). But I'd be curious about whether anyone thinks Corel will stick around as a precedent.a

William Patry said...

Professor Rebecca Tushnet has a summary of the event at her excellent blog: http://tushnet.blogspot.com/2008/04/bridgeman-v-corel-9-years-on.html

Anonymous said...

You can use my photos for free at http://freeartisticphotos.com - all of them are taken by me and made Public Domain

Cheers, Husac