The Right to Display Public Domain Images
An introduction to copyright terms and a discussion of Bridgeman vs Corel



This page was last edited on 1 November 2008.


Greetings, kind visitors.  My name is Marilee Mongello and I created this page in 1999 as a common sense introduction to copyright terms.  It also discusses the Bridgeman vs Corel decision and public domain issues.  As of the last edit on 1 November 2008, the page remains an accurate assessment of current copyright law.  If anything changes, I will of course update this page and note the specific updates in this space.

The issue of copyright was most eloquently discussed - and the concept of public domain most eloquently defended - by the historian Thomas Macaulay in 1841.  Please read his speeches.

update - 1 October 2004:  I had to share this news with public domain advocates.  I was reading through some of the Congressional speeches regarding copyright and came across this gem - Congresswoman Mary Bono (whose late husband pushed through one of the most disastrous copyright laws ever) was reminded that the US Constitution prohibits perpetual intellectual property rights.  Her response?  The copyright term should be "forever minus one day".

I'm serious.

If that doesn't offend and alarm you, what will?  If she had her way, you wouldn't be able to read The Bible for free.  Please consider this issue when you vote.  This is one of the great unreported stories in the US, Europe and now, sadly, Australia.  Yes, the Aussies signed (August 2004) a free-trade agreement with the US which required that Australia accept our draconian copyright laws.


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.
Why does COPYRIGHT exist?
It allows artists to profit from their work.  Profit, in turn, creates an incentive to work and distribute the 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.
Why does PUBLIC DOMAIN exist?
It exists to allow the free exchange of knowledge.  If it did not, museums would be allowed to keep images under perpetual copyright, thus denying everyone the opportunity to view, critique, or otherwise examine works.
Please note that most 20th century works of art are not yet considered part of the PUBLIC DOMAIN.
Click here to view a chart of when works pass into the public domain.

 

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.
The idea is an important part of the English common-law tradition.
Why does FAIR USE exist?
FAIR USE allows people to use images and written works without compensating the original writer/creator, as long as they act in good faith and do not profit from reproducing the work.  Education, parody, criticism, news reporting, etc are all examples of fair use.
The idea of FAIR USE has guided the use of reproductions of works for years.  In most cases, the lack of commercial gain is necessary for a claim of fair use.  If you are a non-profit website designed for educational purposes, you are in the perfect position to claim FAIR USE of images which are already in the PUBLIC DOMAIN.


Wm Scrots's portrait of 13 year old Princess Elizabeth, c1546

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.
97 Civ. 6232 (LAK)

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 IT ABOUT?
The Bridgeman Art Library had made photographic reproductions of famous works of art from museums around the world (works already in the public domain.)  The Corel Corporation used those reproductions for an educational CD-ROM without paying Bridgeman.  Bridgeman claimed copyright infringement.

WHAT DID THE COURT DECIDE?
The Court ruled that reproductions of images in the public domain are not protected by copyright if the reproductions are slavish or lacking in originality.

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?
It's important to me because it allows me to share the beautiful images at my sites.  But it's important to everyone because it means that museums cannot assert perpetual copyright to works.  In other words, museums cannot take a picture of an old painting about to become part of the public domain, claim a new copyright through the reproduction, and do the same process over and over so that the painting never truly enters the public domain.  They would simply be taking the work from one private domain to another, thus invalidating the spirit of copyright law.
In short, simply transferring an exact image from one medium to another does not create a new copyright.

WHAT DOES THE DECISION COVER?
This decision concerns only reproductions of two-dimensional works (like paintings or drawings.)  Reproductions of three-dimensional works, such as sculpture, possess the necessary creativity for a separate copyright - after all, the photographer must choose an angle to shoot from, lighting, backdrop, etc  In other words, he is not merely reproducing an exact image.

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:
''There has been no independent creation, no distinguishable variation from pre-existing works, nothing recognizably the author's own contribution''....

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 -
http://www.constitution.org/1ll/court/fed/bridgman.html

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
Museum directors, like everyone else, knew that exact reproductions did not possess the necessary creativity to have their own copyright.  After all, if such a standard did exist, I could copy out John Keats's poetry word-for-word and then claim I was entitled to a copyright to the poems.  Such an idea is ludicrous.  Keats's poetry is in the public domain.

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.
Copyrights are necessary because they allow artists/writers to profit from their own work.  And profit, of course, provides incentive to create more work.
Public Domain is necessary because it allows for the free exchange of ideas, a necessary part of life in a free society.
Fair Use is necessary because it allows the public some access to copyrighted work, as long as they do not profit from it.  After all, you should not be allowed to essentially steal money for another person's hard work.  However, fair use allows news reporting, book reviews, research reports, educational works, etc to discuss the work.

Or, as the US Supreme Court put it:
"Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."

Or, as I put it:
Why should a museum's copyright exceed the artist's personal copyright?  Yes, that's right - artists and their descendants do not receive money from museums making reproductions of their works.  Why?  Because the works are in the public domain.  Copyright has passed for the artist!  They can no longer profit from their work.  Yet museums are claiming they possess an endless copyright of the work simply because they own the original (which is in the public domain.)  If it sounds absurd, well, it is absurd.  It's absurd and offensive and illegal.

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.
And so drawings of Winnie-the-Pooh, for example, which are still under copyright, cannot be reproduced on your webpage; neither can a book written in 1970, or a song recorded in 1950, or painting made in 1945.  Unfortunately, copyright extensions are a fact of life throughout most of the world.  In the US, for example, copyright has been extended 11 times in the last 40 years.  However, all works prior to the 20th century are in the public domain.  Check the charts for 20th century works.

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.

-Marilee


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.

Please click 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 other words, unless museums are willing to allow people to photograph the original work, the paintings are not truly in the public domain.  I do disagree with his closing comment, in which he attempts to distinguish between US copyright law and other nations.  The concepts of 'fair use' and 'public domain' are recognized on an international level.  Also, is a person making a slavish photographic reproduction of a work of art truly the author of the photograph?  This point was discussed in the Bridgeman decision.  The term copyist is far more appropriate, despite the amount of work involved in taking the photograph.  An apt comparison is this (earlier discussed with the example of Keats's poetry) - if a photographer who merely reproduces a work of art is the author of the reproduction, then someone who copies a novel out word-for-word is also its author.  Clearly, this cannot be the case.  Yet the amount of work required to photograph the painting is the same as the work involved in copying out a book by hand.  Therefore, labor does not imply originality, or a creative spark.  You can take three minutes or three days to make a reproduction.  You can use a camera or Martian technology.  It doesn't matter.  You are merely copying the work.  If it seems as though I'm being simplistic here, rest assured that I am - and it is deliberate.  This issue is very simple and analogies help reveal the simplicity.

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.


Opposing Copyright Extension, Protecting the Public Domain
The best source on the internet.  It contains information on the disastrous Jan 2003 Eldred ruling by the US Supreme Court.

to EnglishHistory.net