In May 2007 a conference was held in London to discuss a leading court judgment, made in 1999, which ruled that exact photographic copies of public domain images could not be protected by copyright because the copies lacked originality; in other words, although much technical skill and labour was needed to make a good-quality photograph of a painting, that was not enough to pass the legal test of ‘sufficient originality’ and so create a new copyright in such photographs.
The conference was organised by the loser of that court case, Bridgeman Art Library (BAL), which from 1972 developed and made commercially available high-quality photographic reproductions of artworks from collections worldwide (www.bridgemanart.com). The basis of BAL’s business model is that a new copyright is created when it makes exact photographic copies of old artworks that are in the ‘public domain’ (copyright lasts for 70 years after the artist’s death, and then expires) which are then offered to would-be users via a copyright licence and fee. In the late 90s BAL discovered a rival North American company, Corel Corporation, making commercially available around 100 images of old master paintings copied from BAL’s archive. BAL brought a lawsuit for breach of copyright, and the case was heard by the Southern District Court, New York. US copyright law has the same ‘originality’ requirement as UK copyright law: in order to prove violation of copyright, BAL first had to establish that it owned copyright in its photographs of artworks – which it failed to do, and so lost the case. BAL’s recent conference was in effect a retrial of the issue, for which it had invited as speakers a range of experts in this field, at the end of which a straw poll was taken resulting in a majority present supporting BAL. ‘The court’s decision came as a surprise and, for many in the art world, an outrage,’ said Harriet Bridgeman, managing director of the Bridgeman Art Library. ‘We felt it important to revisit the original case because we are frequently contacted by professionals and academics interested in it – law students, IP professionals and photographers.’
The originality requirement is not defined by statute law, because legislators have left its meaning for the courts to interpret and apply to the facts of each particular case in the UK, the US and many countries elsewhere. In common with most other developed countries, under the UK’s Copyright, Designs and Patents Act 1988, authors of ‘original’ artistic works automatically acquire copyright irrespective of the quality of the subject matter or of the skill in its execution; thus, for example, a child’s drawing of something from its imagination would acquire copyright by virtue of drawing being used as the medium of artistic expression. This law equally applies to original photographic works. But it has long been disputed whether a photograph of a painting, albeit executed in a medium legally recognised as being an ‘artistic work’, can be sufficiently original – because the image it carries is the product of the artistic skill and labour of the original painter.
The Sculpture Copyright Act 1814 first introduced the originality requirement into UK law, which was reiterated in the Fine Arts Copyright Act 1862. In 1886 the first international Berne Copyright Convention (revisions of which through to the present day set global standards for national copyright laws) spoke of ‘intellectual creations’ rather than ‘original works’, and allowed each country’s legislature to decide its own statutory definition or, as with the UK and US, to allow the courts to decide the matter. The leading court decision in the UK on ‘originality’ was made by England’s highest and most authoritative court, the judicial committee of the House of Lords, in 1900. It concerned literary, not artistic, copyright and decided that a journalist’s verbatim report in The Times of a public speech passed the originality test and was protected by copyright law. The 1900 decision was revisited by UK courts in 1990, in another literary copyright case, where it was decided that a decision by the High Court of Australia in 1917 should be followed, and that the 1900 English decision should not be overturned. The latest UK judicial review was in 2005, where the 1900 case was held still to be good law, but went on to decide that ‘slavish’ or ‘servile’ copying would fail the ‘originality’ test – albeit in the context of an alleged violation of copyright in recorded music. There is still no authoritative UK case dealing specifically with photography of artworks – the nearest parallel being the 1999 BAL case in the US.
The court’s judgment in the 1999 BAL case has been criticised on the basis that it was made by a very low level US district court, many authoritative tiers below the US Supreme Court. However, the district court’s rationale in 1999 is strongly supported by an authoritative 1991 decision of the US Supreme Court, which rejected the argument that the application of difficult technical skill, labour and expense (in making a new work) could satisfy the ‘originality’ test. And so, at the heart of the matter, there are two opposing schools of thought: one arguing that a photograph of an artwork can qualify for copyright protection in English law, because the application of technical skill, labour and expense involved in doing so can satisfy copyright’s originality requirement; the other drawing upon the authoritative and persuasive decisions of the US Supreme Court in 1991 and the US district court in 1999 (both strongly rejecting the ‘difficult skills’ argument), and the UK’s authoritative 2005 decision (that ‘slavish’ or ‘servile’ copying fails the ‘originality’ test).
The 1999 BAL decision has indeed been a cause of commercial concern not only for BAL and its international commercial operations, but also for the owners and keepers of collections of old artworks in museums and galleries worldwide. The Museums Copyright Group (UK) was so concerned that it commissioned an opinion from a leading copyright specialist, which led to the publication of a Guide to Copyright for Museums and Galleries, published by Routledge in 2000. This places strong reliance upon the use of effective contracts to secure and manage rights to fees for the reproduction of artworks in museum and gallery collections, especially for old works that are out of copyright. For, as Peter Wienand, the Museum Copyright Group’s UK Chairman, has said, ‘following Bridgeman v Corel it is vital that the museum community is clear on where they stand in relation to photographic copyright. While museums will always need to protect themselves contractually, the Report and leading counsel’s opinion gives museums the confidence to continue releasing photographs of objects in their collections. This is extremely important news for the sector and will ensure that museums can continue to monitor reproduction quality, protect the integrity of the work, and not least to protect a vital source of income for many museums.’
The concerns raised and being addressed as best they can by UK museums and galleries were not addressed by the comprehensive Gowers Review of Intellectual Property, commissioned by HM Treasury for the UK government and published in December 2006. It is therefore unlikely that the UK government will consider legislating in the foreseeable future to clarify the matter. This leaves museums and galleries – and their commercial service providers, such as BAL – in an uncertain and possibly vulnerable position, whereby they may have to rely upon their contracts with users of their photographic images of their collections – rather than copyright law – to protect their merchandising ventures.
© Henry Lydiate 2007