Bridgeman and the Future of Public Domain Art

From Peter:

I am on the bus headed back to Ithaca after attending a very stimulating panel discussion on Who Owns This Image?  Art, Access, and the Public Domain after Bridgeman v. Corel at the New York Bar Association on Tuesday night.  Bill Patry, one of the participants, has a description of the session and the panel speakers in his blog, and Rebecca Tushnet has an excellent summary of the presentations on her blog, so I don't need to echo her remarks.  I'll just describe instead some of the key themes I heard emerging from the discussion.

First, there is clearly a need for more copyright education.  This is something that we hear from groups like the RIAA and the MPAA all the time, but it applies here as well, too.  It has been 8 years since Judge Kaplan, who was on the panel, issued his decision that photographic reproductions of two dimensional works of art, while requiring tremendous photographic skill, abilities, equipment, and judgment to make, nevertheless lack the creative originality required by the Constitution in order to be afforded copyright protection.  Both Kaplan and Patry placed the decision within the context of a long line of cases that led to and support the decision.

Yet in spite of the obvious correctness of a decision that said that a work whose intent was to duplicate as closely as possible the elements in another work (and consequently minimize its own distinctive differences, to the best of the photographer's ability) cannot meet the definition of originality demanded by the law, some on the panel (and in the audience) acted as if the old rules, which allowed for the separate registration of art reproductions, still existed.  Ted Feder of Art Resources, for example, suggested that a bad attorney (and not the list of precedents cited by Judge Kaplan) shaped the verdict.  He stressed as well Judge Kaplan's relatively low position in the Federal judicial hierarchy (an attack that was nicely parried by Patry, who noted that the quality of the opinion, and not the place within the judicial system, was what mattered).

Clearly there are many museums and art professionals who need to learn that Bridgeman is not an anomaly that can be ignored, but is a decision clearly in line with the development of current copyright law.  Slapping a copyright notice on a reproduction of the Mona Lisa represents not only a misunderstanding of copyright law; it might also be (to my mind) a violation of Section 506(c) of the Copyright Act, which makes it a criminal offense to place a fraudulent copyright notice on a work

Second, the real economic value of the right supposedly taken away by Bridgeman is unclear.  In a somewhat strange thought experiment, Virginia Rutledge, the moderator, asked the panelists to imagine that Bridgeman was not the law of the land (or at least the 2nd Circuit).  She asked whether any infringement would occur if someone took a photographer's high-resolution copy of a public domain work of art and reduced it in size or resolution, such that those elements that were distinctive to that photographer disappeared.  The conclusion from most was that since the new, smaller version was not using any of the photographer's contribution, no infringement occurred.  The implication seemed to be that in a Bridgeman-free world only reproduction or distribution of high-resolution copies of public domain works of art would be prohibited.

I didn't like this line of argument very much for two reasons.  First, I see little point in thinking about what life would be like without Bridgeman, no more than I think about what it would mean if phone books still were protected by copyright (in spite of Feist).  Second, it seems to assume that the only use one wants to make of copies of public domain works is in lower resolution versions.  I don't think that we should make that assumption.

Nevertheless, this line of questioning led into the third major issue raised at the meeting - namely whether we are happy with the impact that Bridgeman may have.  At one point near the end of the evening, Feder suggested that if people actually paid attention to and followed Bridgeman, high-end art reproduction houses like his would go out of business.  Some fine art reproduction photographers, too, might find that the market for subsequent licensing of their photos diminished, threatening their ability to stay in business.  We want the value-added services that these businesses can provide - but we also want ready access to the public domain.  The policy implications are serious.

Comments

[Husac]

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

give it a go;)

Cheers, Husac

[Klaus Graf]

http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag

Unfortunately Wikimedia Commons has a more restrictive (partly UK based) position than the Wikimedia Foundation.

[Peter Hirtle]

Virginia, I appreciate your clarifying the rationale for your thought experiments at the panel discussion. I do worry that many photographers would argue that the level of originality they add is comparable to Duchamp's mustache and beard, and therefore a high resolution reproduction of their at best thin copyright would still be an infringement. You are certainly correct that even this thin copyright disappears entirely if one makes a low resolution scan that fails to capture the skillful contributions of the photographers.

I continue to believe that what we need is a pointed prosecution under the copyright fraud provisions against a prominent New York museum or art photo agency. That might get the attention of the community and convince them to pay attention to Bridgeman and practice. All we need is a federal attorney to agree.

[Virginia Rutledge]

Peter, thank you for posting on this panel!

The fact is, we are in a life without Bridgeman, for most practical purposes, even in the Southern District of New York. So until the holding of Bridgeman is recognized in actual practice, and copyright is no longer asserted in photographic reproductions of two-dimensional works in the public domain (to hew to the facts of Bridgeman), I think it's valuable to try to understand the various arguments against the holding. Sticking to the legal argument here, it is that there is something copyrightable in the way a particular photographer reproduces the underlying work in question. We know that "originality" under the law doesn't have to be much -- so pushing to understand what exactly the copyright is that is being asserted here, to my way of thinking, helps clarify that it isn't enough. That's the point of the other thought experiment I offered -- if you strip off the mustache and beard added by Duchamp to his version of the Mona Lisa, what do you really have, in terms of something copyrightable? Do the photographers of art in the public domain have even that much? Jessica Litman has usefully discussed the "fiction" of copyright, which I think is relevant here (though I'm not asserting Prof. Litman necessarily would agree with my example).

The fundamental point here seems to me to be that if access to the public domain can be controlled by restricting access to reproductions of the public domain, we do have some serious policy implications, indeed.

So there actually were two aims driving my question about what would be infringed in a non-Bridgeman world, if the "original" and allegedly copyrightable elements of the reproduction in fact were not reproduced. First, to point out the very slim basis for any copyright claim at all. But second, to make it clear to those who can now benefit from scanning reproductions at less than ideal resolution, that they should not fear to do so. Judging from the number of art historians and librarians who wanted to talk about this after the panel, that was a point worth making.

I completely agree it doesn't go far enough.