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BRIDGEMAN LOSES COPYRIGHT CLAIM
February 9, 1999
by: Charles Swan
The Bridgeman Art Library's claims against Corel Corporation have been
dismissed by a New York court.
Photographic reproductions of paintings were held not to be protected by
copyright in their own right. They lack originality, a key ingredient for
protection of any artistic work.
Corel marketed a set of CD-ROMs, "Masters CD-ROM", containing 700
digital reproductions of well known paintings by old masters (all the
paintings were public domain). Corel claimed it obtained the images from
35mm slides owned by a California company, Off the Wall Inc. Bridgeman
claimed that Corel had infringed its rights in around 120 of its images.
Bridgeman had no direct evidence that its transparencies had been
copied, but claimed that since the owners of the paintings all strictly
limit access to the works, and since Bridgeman's transparencies were the
only authorised transparencies in some cases, the images in Corel's
collection must have been copies of Bridgeman's.
Bridgeman argued that its transparencies were original for three
reasons:
1. The change of medium from painting to photograph.
2. Because colour correction bars were attached to its images.
3. Because photography requires artistic talent and originality.
The judge disagreed on all counts. On the key issue of creativity, the
judge decided that although almost all photography is sufficiently original
to be protected by copyright, a photograph which is merely a copy of someone
else's work is not an original work in its own right.
The judge drew an analogy with photocopying: "Surely designing the
technology to produce exact reproductions of documents required much
engineering talent, but that does not make the reproductions copyrightable
... skill, labour or judgment merely in the process of copying cannot confer
originality."
The decision was based on UK copyright law but the judge said that he would
have reached the same result under US law.
This decision is not binding on UK courts as US decisions are only
"persuasive". Barring a successful appeal, however, it is likely to be
accepted by the industry as a clear statement that museums and photo
libraries cannot use copyright law to protect photographs of two dimensional
artistic works. If a photograph of a painting is not protected it must also
be doubtful whether there can be any separate copyright in a digital scan.
Charles Swan can be reached at The Simkins Partnership, a media law firm in
London Tel: 0171 631 1050, Fax: 0171 436 2744, Email:charles.swan@simkins.com.
For more information vist their web site at http://www.simkins.com.