08 November 2012

Bridgeman, Corbis and Creativity

'Photographic Reproductions, Copyright and the Slavish Copy' by Terry Kogan in (2012) 35(4) Columbia Journal of Law & the Arts 445-502 poses questions about the famous decision in Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998).

Kogan comments that -
Museum photographers are among the most maligned of all professional artists by copyright law. The honeymooner’s amateur photograph of Niagara Falls taken with a point-and-shoot camera is entitled to copyright protection, while the carefully crafted photographic reproduction of a painting taken by a well-trained and seasoned photographer is deemed an unoriginal slavish copy, the legal equivalent of a photocopy. In the realm of photography, perfection breeds contempt. The more accurate the art reproduction in capturing colors, the play of light off of the textured paint, the depth of shadow on the surface, etc., the less likely that a work will be deemed deserving of copyright protection. One author has even accused museum photographers who assert a copyright in photographic reproductions of public domain paintings of "copyfraud".
This Article argues that denying copyright protection to the museum photographer’s images is a profound mistake, one that reflects the law’s perpetual struggle with identifying exactly what makes a photograph original. Copyright law has not been alone in this struggle. From the moment the technology was developed in the 1830s, artists and cultural critics have questioned whether photography should be considered a creative art form or a mere technological achievement. Two features of photography have fueled this debate. First, the product of the technology - the photograph - has been the source of much confusion. Given that every photograph is a mirror-like image of whatever happens to be sitting in front of the camera, what room is there for a photographer’s artistic input? Second, the technological process of making a photograph raises doubts about its creative potential. How can an image that results automatically from a “mechanical contrivance[]” - the mere clicking of a camera’s shutter release - embody any creative input?
The photograph was accepted into the pantheon of copyrightable works in the mid-Nineteenth Century, but the cultural controversy surrounding photography is imprinted in the very legal test used today to determine originality. The Supreme Court set forth two criteria of originality in Feist Publications, Inc. v. Rural Telephone Service Co.: “[T]he work [must have been] independently created by the author (as opposed to copied from other works), and . . . it [must] possess[] at least some minimal degree of creativity.” Applied to photography, the first criterion asks whether the product of the technology—the photograph—originated with the photographer or was copied from an existing work. Legal skeptics have long argued that, given the close resemblance between a photograph and its subject matter, such images are unoriginal copies devoid of independent creation. The second criterion requires that, in the process of creating a photograph, the photographer must infuse the work with a minimal degree of personality. Again, legal skeptics argue that a photograph results from the simple interaction between light and the mechanics of the camera, relegating the photographer to the role of mere technician incapable of infusing his own personality into the image.
Despite the skeptics, copyright law now embraces virtually any photograph as embodying the requisite creativity to be deemed original. “Currently, there is almost no lower bound on copyrightability of photographs .... [O]nly a (successful) photographic attempt to reproduce an existing two-dimensional work will be considered to add so little originality to the world as to be uncopyrightable.” This “lower bound” was ostensibly reached in Bridgeman Art Library, Ltd. v. Corel Corp., which held that a photographic reproduction of a public domain painting is a “slavish copy,” undeserving of copyright protection. Though the facts of Bridgeman concerned public domain paintings, the case’s reasoning was broad enough to relegate all photographic reproductions of paintings to mere slavish copies. Many courts and commentators have endorsed Bridgeman’s conclusion.
This Article challenges that conclusion and argues that most photographic reproductions of artwork fully satisfy Feist’s criteria of originality. To explain why courts and commentators have reached the opposite conclusion, I turn to recent scholarship in art and visual theory that explores certain ingrained cultural habits ordinary viewers bring with them when looking at photographic reproductions of artwork. Most importantly, a viewer tends to look through such an image, as though it were transparent, and see only the depicted painting. The viewer erases from his mind the fact that he is actually looking at a photograph with unique photographic attributes - erasing even the existence of the photographer responsible for that image, including the range of artistic judgments and choices that went into producing the photographic reproduction. The only artistic choices of which the ordinary viewer is consciously aware are those of the painter of the depicted artwork. Judges, juries and legal commentators are not exempt from these cultural habits, and this wreaks havoc when Feist’s criteria of originality are applied to photographic reproductions.
In light of these insights, I argue that Bridgeman’s widely accepted conclusion that photographic reproductions of paintings are slavish copies is flatly mistaken. A photograph of a museum painting in an art history textbook is no more a slavish copy of that painting than a photograph of a tree in a botany textbook is a slavish copy of the tree. Moreover, the professional museum photographer’s judgments and choices - choosing a camera and adjusting its settings; choosing the film; arranging the lighting; developing and printing the photograph, etc. - fully satisfy Feist’s requirement of a "minimal degree of creativity".
Part I of this Article explores copyright law’s originality requirement and its application to photography. Part II turns to Bridgeman and examines the court’s conclusion that a photographic reproduction of a painting is a slavish copy. To set the stage for my critique of Bridgeman, Part III invites the reader to participate in a simple thought experiment involving five photographs taken in a museum. The experiment is designed to raise doubts about whether a photographic reproduction of artwork is different in any meaningful respect from other photographs in terms of creativity. The Article then turns to art and visual theory to provide a theoretical foundation for the remainder of the Article.
Part IV examines the concept of a “slavish copy” and its application in Bridgeman. The term is often bandied about in cases and commentary, but virtually no one has attempted to explicate precisely what slavish copying actually means. Case law is reviewed to extract a definition of slavish copying, and show that most photographic reproductions of artwork fail to satisfy this definition. The Section concludes that most photographic reproductions of paintings are fully deserving of copyright protection.
Having rejected the view of a photographic reproduction as an imitation or duplicate, this Article proposes a more fruitful way to think about that image: as a map of the depicted painting. In the same way an aerial photograph of Manhattan maps each location of the island onto the image, so a photographic reproduction maps each point of the depicted painting. But neither the aerial photo nor the photographic reproduction is an imitation or duplicate, much less a slavish copy.
Finally, Part V addresses policy concerns. Refusing to grant copyright protection to photographic reproductions of paintings denies the museum photographer economic incentives that the law extends to other artists. Given the importance of such images to educators, artists and the public’s appreciation of artworks, I argue that the wisdom of denying that incentive to photographers whose very profession is to create high quality art reproductions is highly questionable and extremely unfair.
'Corbis & Copyright?: Is Bill Gates Trying to Corner the Market on Public Domain Art?' by Tanya Cooper in (2011) 16  Intellectual Property Law Bulletin 1-43 comments that
Art has the power to stir our emotions, evoke a physical response, and transport us to a different world. It can inspire and transform us. For all of those precious qualities, the public relies upon knowing that once the artist’s exclusive rights to the artwork elapse, the “art must ultimately belong to us all.” The notion that artwork eventually belongs to the public is paramount because art, like books and music, represents a collective experience that helps define what it means to be human. Thus, once the artist has enjoyed her exclusive rights to that art, it should belong to no one individual, but to everyone. This article argues that Corbis’s copyright claim in its digitized reproductions of public domain art is suspect and concludes by discussing the ramifications for the public domain when Corbis asserts copyright protection for its public domain digital copies. Given the power and influence that Bill Gates and his company Corbis have on the market for public domain art, it behooves the public to be aware of this issue.