Bridgeman Art Library v Corel Corp

Many collage artists use reproductions of museum art in their work, assuming that a painting created hundreds of years ago must be in the public domain.

To their chagrin, artists who try to publish such work have discovered that even if the original art is public domain, all existing reproductions are under copyright. This renders the original work completely out of reach, regardless of whether it is technically public domain.

Museums prevent the viewing public from photographing art in their collections for many reasons, such as the expense and inconvenience of moving their art so it can be photographed. And more importantly, to preserve a monopoly over reproductions. Museums derive substantial income from posters, greeting cards, mouse pads etc. Naturally they want to protect their intellectual property.

However, a recent court case may have shed new light on the situation. Bridgeman Art Library is a British company which licenses transparencies of museum art. In 1998, Bridgeman sued Corel, claiming that Corel's CD of fine art reproductions infringed on Bridgeman's copyright.

The court determined that museum reproductions, whose purpose is to duplicate the original work as precisely as possible, do not involve enough originality to be copyrighted as a derivative work. In other words, a museum reproduction of fine art in the public domain is itself public domain, and unauthorized duplication of the reproduction is not copyright infringement.

High-quality photography involves a great deal of skill and effort. That may make this decision seem unfair. After all, what is the point of going to all that work? A high quality reproduction has no more protection than an amateur snapshot. Probably less, since a snapshot will likely include elements (like an odd perspective or someone standing next to the artwork) that would qualify as originality.

The court made a distinction between skill and originality. It may require an immense amount of skill to create a photograph that precisely duplicates a work of art. But, the court said, "'sweat of the brow' alone is not the 'creative spark' which is the sine qua non of originality." An exact duplicate deserves no more copyright protection than a photocopy.

The decision noted that "There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection...." However,

"Plaintiff by its own admission has labored to create "slavish copies" of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality -- indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances."

Speaking about this case, an attorney for the American Association of Museums said: "Just about every museum attorney looking at the case objectively thinks it came out the correct way according to U.S. copyright law -- that's why no museum had ever brought such a suit.... It would have been unwise for AAM to be on Bridgeman's side in this case because it would have undermined our credibility."

Some important points to note:

  • Bridgeman v Corel affects only United States law. If you intend to publish your work in other countries besides the US, I would not recommend using this case as a guideline for legal use.
  • Bridgeman v Corel does not affect the law regarding photographs of three-dimensional works of art. The decision specifically addresses only two-dimensional works, where the goal is to duplicate the original as closely as possible. Photographing sculpture involves decisions about position, backdrop, lighting etc., all of which would probably make the photograph pass the "originality" test. However, this case does not discuss it one way or the other.
  • Bridgeman v Corel does not suggest that all museum reproductions are in the public domain. If the original is still under copyright, then so is the reproduction.
  • Bridgeman v Corel does not mean that you cannot be sued. Anyone can sue for any reason, whether or not they expect to win. (In fact, sometimes the threat of legal action is used as a bullying tactic, without any concern for who would win in court.) It does mean that you can copy museum reproductions of historical art in good faith.