After Bridgeman: copyright, museums, and public domain works of art.

• Author: Allan, Robin J.

INTRODUCTION

Posters of water lilies on dorm room walls. A calendar turned to December's picture--a Renaissance painting of the Holy Family. A box of note cards with scenes from seventeenth-century Japanese scrolls. Turn over any of these art-laden items, or look for the fine print in the corner, and the attentive art lover will find the [c], the symbol that indicates the work is protected by copyright. But look closely. The [c] is followed not by the artist's name, but by the name of the museum that owns or displays the work: "[c] The Metropolitan Museum of Art" or "[c] The Museum of Fine Arts, Boston" or "[c] The Philadelphia Museum of Art." The works reproduced are in the public domain. The copyright monopoly has expired, or, in the case of many works of art, production predates any copyright scheme entirely. (1)

So, how can a museum copyright a piece of art that is in the public domain? Copyright can come in layers, and peeling back these layers often reveals surprises. The copyright on the poster, the calendar, and the note cards is not claimed in the work of art itself, but in the museum's reproduction of that work. To transform a painting on the wall into a t-shirt or a notepad or a mug, a museum photographer takes a picture of the painting, and that photograph is then reproduced onto cloth or paper or ceramic. (2) For example, The Annunciation, by Jan van Eyck, exhibited at the Philadelphia Museum of Art, has never been protected by copyright--it predates copyright in the visual arts by more than four hundred years--but the photograph of the painting and the poster made from the photograph are copyrighted by the Museum. (3)

At least, the Museum claims the copyright. Art museums rely on the validity of their copyrights in reproductions of public domain works of art to educate the public and to generate income. As any visitor knows, the gift shop plays an important role in the modern museum. In addition to enriching scholarship and widening public access to works of art, sales of reproductions and derivative products are a major revenue stream for museums. (4) Museums reproduce works from their collections in high-quality formats, making them suitable for inclusion in books and journals, and many museums also make their collections available to patrons online. (5)

Are museum claims of copyright in their reproductions of public domain works of art valid? In 1998 and 1999, this longstanding practice was called into question by a case in the Southern District of New York. The two decisions in Bridgeman Art Library v. Corel Corp. (6) have significant implications for art museum practice and prompt major questions about copyright law and how intellectual property policies affect nonprofit cultural organizations. The question in Bridgeman was whether Corel, by selling a set of CD-ROMs containing digital images of public domain works of art, had infringed the Bridgeman Art Library's copyright in its library of high-quality color transparencies of the same works. (7) The court found that not only had there been no infringement, there was no copyright to infringe. (8) Because Bridgeman's library consisted of art reproduction photographs, the court decided that the work did not meet copyright law's minimum standards of originality. It held that no copyright was available when "the point of the exercise was to reproduce the underlying works with absolute fidelity. (9)

This Comment argues that Bridgeman was wrongly decided, both from a legal standpoint and from a policy perspective. In examining the cases most heavily relied on by the Bridgeman court, it appears that the court interpreted copyright law's originality requirement in a way that was both too broad (by including Bridgeman's photography under the "sweat of the brow" doctrine) and too narrow (by requiring an inappropriately high level of creativity). (10) The Bridgeman court's analogy to a photocopier (11) was also overinclusive and inapt: that comparison would include any photography where the goal is to reproduce exactly what is in front of the camera. The Bridgeman court failed to distinguish between reproductions of two-dimensional and three-dimensional works of art and brushed aside the skill and experience required for fine art reproductive photography. This photography should have fulfilled the "extremely low" level of creativity required by the Supreme Court of the United States in Feist Publications, Inc. v. Rural Telephone Service Co. (12)

Some advocates of an expanded public domain heralded Bridgeman as a bulwark against an encroaching copyright. (13) This Comment argues that in addition to providing needed revenue to museums and contributing to better-quality reproductions, a strong copyright on reproduced works of art actually encourages museums to distribute work more broadly, thus fulfilling museums' federally mandated missions by encouraging more public viewing and consumption of art. (14) Without copyright in their reproductions, museums are likely to turn to contracts and licensing agreements as a way to govern access to the works in their collections--who can see them, who can photograph them, and what the photographs can be used for. (15) These contracts have no input from viewers and consumers and, unlike copyright law, no fair use exceptions. (16) From a policy perspective, a copyright in art reproductions fulfills the public interest better than the contracts that museums will turn to in order to protect their works if copyrights in art reproductions are deemed invalid.

Part I of this Comment describes the Bridgeman decisions themselves. Part II examines the history of American copyright law and the idea of the public domain, and explores the historical roots of the originality requirement and the copyrightability of photographs. Part III addresses the Bridgeman court's interpretation of the originality requirement, its dismissal of Bridgeman's arguments, and the prospect of a post-Bridgeman world in which museums rely on contract remedies, rather than copyright, to the detriment of the public. This Comment suggests that the Bridgeman decision should not be a model for other courts: following this decision would foster an inaccurate analysis of the originality requirement, draw revenue away from museums, discourage the creation of high-quality reproductions, and, most importantly, diminish the rights of viewers through increasingly constrained contracts of adhesion. The law and the public would both suffer if the ideas in the Bridgeman decision were widely adopted.

1. THE BRIDGEMAN DECISIONS

   This Comment focuses on the implications of the Bridgeman decisions for museums and the problematic scope of the tests for originality outlined in the opinions. (17) There are a number of issues in the case, including choice of law, which this Comment will not address in detail. (18) The presence of two decisions does require an explanation: the first Bridgeman decision, in November 1998, concluded that United Kingdom law governed the question of whether Bridgeman held a valid copyright in its reproductions (19) and that United States law governed the question of whether an infringement had in fact occurred. (20) The court noted that U.S. law would have yielded the same result as U.K. law, and indeed, in the second decision, discussed below, the court reached the same conclusion under U.S. law. (21)

   The Bridgeman Art Library, an English company, handled the licensing of images of works of art from a large number of museums, primarily in Europe, but also the Brooklyn Museum and the Museum of the City of New York. (22) Bridgeman's collection of transparencies, made from photographs taken by museum photographers or freelance photographers hired by Bridgeman, included many well-known Old Master works, such as the Sistine Chapel Ceiling and the Mona Lisa. (23) Bridgeman stored these images in two formats. The high-resolution color transparencies were used for print publication of the reproductions. (24) The other format was a CD-ROM of low-resolution digital images, used as a catalogue for interested clients (25) who could review the available image database on disc before ordering specific reproductions. (26)

   The infringement issue arose when Corel, an American software company, produced a set of CD-ROMs called "Corel Professional Photos CD-ROM Masters I-VII," which contained digital reproductions of famous European paintings. (27) The Corel discs contained seven hundred works of art; 120 were works also featured on Bridgeman's catalogue disc. (28) Bridgeman alleged that the only way Corel could have acquired the reproductions was by copying Bridgeman's transparencies, because the owners of the works tightly controlled access to them and Bridgeman had the only authorized reproductions. (29) Before settling the question of infringement, the court had to decide whether Bridgeman held valid copyrights in the transparencies. Holding that there was no such copyright because the reproductions lacked the requisite originality, (30) the court granted Cord's motion for summary judgment. (31)

   After the decision, Bridgeman moved for reargument and reconsideration on the grounds that the court had overlooked certain pertinent elements of British law. (32) The court agreed to rehear the case, but in Bridgeman II it applied U.S. law to the issue of the transparency copyrights' validity. The court cited the Berne Convention's rule that copyright cases are governed by the laws of the country where protection is claimed. (33) The court's discussion of the originality requirement was more complete in the second opinion, (34) but the result of the rehearing was the same: the court granted Corel's motion for summary judgment, writing that the plaintiff had "labored to create 'slavish copies' of public domain works of art," in which "there was no spark of originality." (35)

   The March 1999 decision was the end of the Bridgeman saga in the courts; there was...