Definition of terms used on this page -
COPYRIGHT - The legal right given to a
writer, composer, artist, or a distributor to exclusive production,
sale, or distribution of their work.
PUBLIC DOMAIN - the status of publications,
products, and processes that are not protected under patent or copyright.
All images at this site are in the public domain, and have been for
several hundred years.
FAIR USE - Fair use is a limitation on
the exclusive rights of the copyright owner; in other words, it allows
reasonable public access to copyrighted works.
Yes, we live in a world where the Scrots portrait of the future Queen Elizabeth I is considered to be under copyright - but Elizabeth's own letters / speeches / poetry have been in the public domain for centuries.... Funny.
For a long time, the FAIR USE doctrine occupied a grey area of law, usually decided on a case-by-case basis. Typically, if someone were profiting from another person's work which was not in the PUBLIC DOMAIN, it was not considered fair use. Museums typically did not sue non-profit websites which reproduced images for educational purposes. If they had, the court would have forced them to prove a substantial loss of profit from the use. Understandably, such proof would not exist and the court would not look favorably upon such a vindictive case, particularly since the images were already in the public domain.
However, on 18th February 1999, the grey area was cleared considerably. Fair Use was no longer a murky legal issue to be debated by webmasters and museums. The United States District Court for the Southern District of New York decided the following case -
The Bridgeman Art Library, Ltd., Plaintiff,
- versus - Corel Corporation, et ano., Defendants.
Their decision was one of the most important copyright decision affecting museums ever filed. The decision was based on both US and UK copyright law.
WHO WAS INVOLVED IN THE CASE & WHAT WAS
WHAT DID THE COURT DECIDE?
In their opinion, the Court noted: ''There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection.... But 'slavish copying', although doubtless requiring technical skill and effort, does not qualify.''
In other words, an exact reproduction of an image in the public domain does not possess creativity itself. Therefore, the reproduction is not protected under copyright law.
WHY IS THIS IMPORTANT?
WHAT DOES THE DECISION COVER?
Also, please note that a non-exact reproduction of an image is not covered.
This is an important point - only EXACT COPIES of the paintings are affected by the decision. The decision is based upon the correct premise that 'slavish copies' do not possess any originality or creativity of their own, and are thus ineligible for copyright.
The Court explained this point further:
This merely reflected an earlier ruling by the Supreme Court which stated that "sweat of the brow" (for example, the act of reproducing a work) is not the "creative spark" which deserves copyright.
THE ENTIRE TEXT OF THE COURT'S RULING IS AVAILABLE
ONLINE at the First Amendment Law Library -
I encourage visitors to read the decision. Judge Kaplan is remarkably concise, particularly when compared to other jurists. (Note: the original decision has been replaced by Judge Kaplan's memorandum opinion after Bridgeman moved for reargument and reconsideration following his summary judgment.)
It is interesting to note that many museums,
and the American Association of Museums, were unhappy that Bridgeman
brought the case against Corel, surmising (correctly, it turned out)
that the Court would not rule in their favor. In fact, the Court
quoted a former general counsel from the Museum of Modern Art, New
York in rendering its decision.
And if his original poems are in the public domain, why aren't portraits of him painted at the same time?
Exactly. They are - museums would just prefer otherwise.
In closing, I would like to point out three things -
First, the Bridgeman vs Corel decision will not bankrupt museums. It is true that museums make money selling reproductions of the images in their collections. However, commercial publishers will still want a high quality reproduction of the image which can only truly be provided by the museum which controls access to the painting; publishers don't care much about copyright, only the best-looking image. Webmasters, at best, can only scan reproductions and even the best scanner cannot capture the quality of a museum-approved reproduction. And webmasters are not selling reproductions which claim to be made by the museums which own the original work; that would be fraudulent and illegal.
Second, most museums hold their collections in the public trust and exist primarily as educational/cultural facilities. The public domain images in their collections are exactly that - in the public domain, and we are the public. Most museums also receive money and special tax breaks from the cities/states/countries in which they are located. Why? Because they are public institutions.
Third - and perhaps most importantly - copyrights
and public domain and fair use are all terms which exist together
for a reason.
Or, as the US Supreme Court put it:
Or, as I put it:
Take a moment to imagine Van Gogh's heirs suing over all those coffee mugs with his famous sunflowers, or the endless posters of his starry skies. Exactly. You would laugh at the news. Now take a moment to laugh at museums.
In a perfect world, the artist profits from their work for a very lengthy period of time and then the work becomes part of our cultural heritage.
In our imperfect world, however, museums often attempt to intimidate webmasters and others into either paying large sums for reproduction rights, or to remove the images entirely. They count upon webmasters having neither the legal knowledge to defend their rights or having money to hire legal counsel. Most museums, of course, have large budgets and numerous attorneys. And they know it's far easier to intimidate the 'little guy' rather than a wealthy company which can tie a case up in court for many expensive years.
They also know that Bridgeman vs Corel has clarified the formerly vague concept of fair use. Before, they could shape fair use to their own needs. Now, however, fair use has been quite clearly defined.
It is important to remember that museums were first created in the 18th century to allow the public free access to their cultural treasures, not to make money selling t-shirts, mugs, posters, etc I understand that they wish to raise funds for their work, but - as I explained earlier - Bridgeman vs Corel will not bankrupt museums. After all, in the early 1980s, the movie industry believed VCRs would destroy Hollywood. Obviously, that hasn't happened.
In light of the Bridgeman vs Corel decision, museums have decided to focus on controlling access rather than subverting the concept of public domain. This, too, has led to some rather questionable practices. Think about it for a moment - if a unique work of art is in the public domain and the museum willfully disallows access to the work (for reproduction purposes), aren't they guilty of creating a monopoly? And of attempting to create an illegal perpetual copyright? Just a few points to ponder, among many others.
I have (very quickly) created this page to help webmasters understand their rights. I apologize if something is explained badly, or not at all.
Please keep in mind that the all-important
Bridgeman vs Corel decision applies only to exact reproductions of
two-dimensional works of art already in the public domain.
Remember - when in doubt, ask. Nolo.com has a great legal advice section.
And give thanks to the US District Court for the Southern District of New York. In our age of increasing mergers between large, global multi-media companies and the pre-eminence of a few large museums, it's possible that - one day - a handful of companies/museums could control access to most of the great works of art in human history. Public domain guarantees us access to those works, and without it we would be.... Well, we would be stuck at the table of mediocrity, denied our right to explore the best parts of our heritage.
Updates and Links
For now (October 2004), the Bridgeman decision stands. If anything changes, I will post it here.
Please note that recent EU-sponsored copyright changes further extend copyright terms of 20th century works. Books, music, etc which might have been scheduled to pass into the public domain are now protected for several more decades. (Yet another sell-out to the growing 'content industry'....) If you live in Europe, please research the new terms. If the above link has expired, simply type 'EU copyright law 2003' into a search engine and start exploring. Though most articles focus on digital music and film, the law applies to all creative works. It's even worse than the DMCA. Egads! I never thought a law could be worse than the DMCA.
here to read an interesting 'question and answer' about Bridgeman.
Professor Ochoa's response is reasonable and apt, particularly this
comment: 'Where the public does not have access to the original painting,
the ONLY way it has to reproduce the painting itself is to reproduce
a reproduction of it. Unless we hold that the Bridgeman photographs
can be freely copied, the painting, as a practical matter, is not
in the public domain.'
In any case, Bridgeman vs Corel was not concerned with the processes of reproduction since those are covered by patent law. It was concerned with copyright. Copyright exists to reward the creative spark / originality. It does not exist to reward labor.
You may wonder why I'm going on and on about the photography angle. It's because museums have made it their new argument for copyright protection and against Bridgeman. They claim the court did not fully understand or appreciate the labor involved in making photographic reproductions. But they are being disingenuous, as my above paragraph demonstrates. Also, Judge Kaplan most assuredly considered the labor involved. No one is denying that photographers labor to create the reproduction. But why should that work be used to create a perpetual copyright for something in the public domain?! Museums are mute on that point. The photographers are paid for their labor. The museums deny the public access to the works and therefore control the 'licensing' of the best reproductions. They are paid for the licenses. Who suffers in this situation? The public! By law, we should be able to go to a museum and demand access to a painting in the public domain so we can take photographs. But museums won't let us! I know this because I've tried it. Museums simply don't want competition for their 'officially-licensed' merchandise. It's all about profit, - if they were concerned with 'artistic integrity', they would allow the public right of access or provide an approved, high-quality reproduction to anyone who asked. Don't hold your breath waiting for that to happen....
If the concept of public domain is to have any meaning at all, then exact photographic reproductions cannot be given copyright. It's a matter of principle - and common sense - and public interest.