Our study found that the efforts of owners of
works of art in the public domain to claim copyright over plainlyreproductive images of them is meeting with growing criticism and
with legal and practical attempts at remediation. Such critiquesusually argue for a distinction between "artistic" or obviously
"interpretative" images of works of art and architecture on the onehand, and, on the other, "slavish copies" or "exact records" of
such works.
At first sight, this distinction appears
problematic on philosophical as well as pragmatic grounds.
This important extension of the notion of
the artistic work protected by copyright is discussed fully byBielstein,
Permissions , 35-47. Bielstein argues that the
distinction is particularly clear in the case of images oftwo-dimensional works of art such as paintings and works on paper,
and that "these photographs do not qualify for protection undereither U.S. or British law because they do not exhibit a minimum
amount of originality" (40).
It seems easier to make for
works of architecture, sculpture, performance art, andinstallations than for paintings, drawings, and prints, because
viewing angles, lighting, and the presence of figures matter thatmuch more in images of spatially and temporally extensive works.
According to the Architectural Works
Copyright Protection Act of 1990, architectural drawings and visualmodels can be copyrighted as "pictorial or graphic works." The act
specifies, however, that built architecture in publicly accessiblelocations may be freely photographed. Such photographs by others
are copyrightable by the photographer rather than the architect.William S. Strong,
The Copyright Book , 5th ed. (Cambridge, Mass.:
MIT Press, 1999), 19.
Yet as superior photographers of "flat"
works will claim, translating an oil painting—especially one with
fine-grained brushwork or heavy impasto, subtle colorism or complexperspective—into an image that will evoke its aesthetic effects in
print or on screen is a creative endeavor in its own right, whosecommercial value should be protected by copyright. Many
contemporary artists would use different arguments to challenge theclaim that imaginative yet nearly exact reproductions of flat
images cannot be copyrighted. Various forms of appropriation of"flat" images, some of which may appear "exact," "slavish," and
"unoriginal," have been central to art production for severaldecades now, and their philosophical status has been the subject of
sophisticated art criticism.
See, for example, Nelson Goodman,
Languages
of Art (Indianapolis: Bobbs-Merrill, 1968); Arthur Danto, "The End
of Art," in Arthur Danto,
The Philosophical Disenfranchisement of
Art (New York, 1986), 81-115.
The argument that reproductive
images of "flat" works lack the modicum of creativity required forcopyright production may be appealing to scholars of paintings,
drawings, prints, and photographs in the public domain, but itseems difficult to make and harder to adjudicate.
Nevertheless, it was precisely on distinctions
between creative and slavish reproductions that the U.S. DistrictCourt judge in the 1998 case
Bridgeman Art Library v. Corel
Corporation rejected the plaintiff's claim that Corel had infringed
its copyright in color images of paintings in the public domain.Corel had digitized several transparencies made and owned by
Bridgeman of the works in question. The judge ruled: "There islittle doubt that many photographs, probably the overwhelming
majority, reflect at least the modest amount of originalityrequired for copyright protection. . .. But 'slavish copying,'
although doubtless requiring technical skill and effort, does notqualify." Significantly, the judge ruled that the technical change
in medium, from oil to transparency, did not constitute suchoriginality.
The case was argued and decided in the same
court, by the same judge, twice, with the same outcome: first in1998, applying U.K. law (the plaintiff is a U.K. company), and
again in 1999, applying U.S. law (the alleged infringement tookplace in the U.S.). For the 1999 ruling, see
(External Link) .
