IS THAT PHOTO IN PUBLIC DOMAIN?

A recent Southern District of New York case, The Bridgeman Art Library, Ltd. V. Corel Corp., has confirmed that the marketing of photographic copies of public domain master artworks, without adding anything original, cannot constitute copyright infringement when the underlying work is in the public domain.

Bridgeman claimed to have exclusive rights in photographic transparencies plus digital images of a number of well-known works of art located in various museums.

Corel markets CD's containing photographs of a significant number of the artworks. Unable to prove copying by Corel (which claimed independent creation), Bridgeman alleged Corel "must have" copied Bridgeman's images.

Applicable foreign law issues were also involved. The Court held that British law applied to the copyright issues, but since the United States Copyright Act and British Copyright law were substantially the same in the relevant areas, the result would have been the same under either law.

A key point was that Bridgeman "strives to reproduce precisely those works of art" which are in the public domain. Therefore it could not meet the originality requirement of either law. The Court pointed out that "one need not deny the creativity inherent in the art of photography." This creativity was not lacking; what was lacking was only the "originality" of the work. The court summarized the point as "skill, labor or judgment merely in the process of copying cannot confer originality."

Bridgeman did claim that it added a color bar to each image, and that this transformed the works into something that was protectable. The court easily dismissed this argument since Corel's images did not include that feature. Accordingly, even if this addition would be considered as transformative, only that portion of the work which was allegedly copied could be considered, and since the reproductions were all of public domain images, no infringement could have occurred.

Finally, the court dismissed trademark infringement claims as being covered by the Copyright Act, and on the grounds that Bridgeman did not claim any trademark rights nor was there any confusion to the public.