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3 more GS3 model-collections, two of which are intermediate stages of tutorials
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4<meta name="author" content="Marilee Mongello">
5<meta name="page_topic" content="museum art reproductions right to display public domain images Bridgeman vs Corel copyright">
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11<title>The Right to Display Public Domain Images: Copyright and fair use,
12Bridgeman vs Corel, museums vs the public, etc</title>
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22 <td valign="top" width="73%" height="29">&nbsp;</td>
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33 <p align="center"><br>
34 <img border="0" src="copyrightba.gif" width="422" height="162"></p>
35 <blockquote>
36 <hr>
37 <P align=left><FONT size=2 face="Arial">I created this page in 1999 as a common sense
38 <I>introduction</I> to copyright terms.&nbsp; It also discusses the Bridgeman vs
39 Corel decision and public domain issues.</FONT></P>
40 <P align=left><font face="Arial" size="2">The issue of copyright was most
41 eloquently discussed - and the concept of public domain most eloquently
42 defended - by the historian Thomas Macaulay in 1841.&nbsp; Please
43 <a href="http://www.baen.com/library/palaver4.htm">read his speeches</a>.</font></P>
44 <P align=left><font face="Arial"><font color="#FF0000"><b>updated 1
45 October 2004:</b></font>&nbsp; I had to share this news with public domain
46 advocates.&nbsp; I was reading through some of the Congressional speeches
47 regarding copyright and came across this gem - Congresswoman Mary Bono
48 (whose late husband pushed through one of the most disastrous copyright
49 laws ever) was reminded that the US Constitution prohibits perpetual
50 intellectual property rights.&nbsp; Her response?&nbsp; The copyright term
51 should be &quot;forever minus one day&quot;.</font></P>
52 <P align=left><font face="Arial">I'm serious.</font></P>
53 <P align=left><font face="Arial">If that doesn't offend and alarm you,
54 what will?&nbsp; If she had her way, you wouldn't be able to read The
55 Bible for free.&nbsp; Please consider this issue when you vote.&nbsp; This
56 is one of the great unreported stories in the US, Europe and now, sadly,
57 Australia.&nbsp; Yes, the Aussies signed (August 2004) a free-trade
58 agreement with the US which required that Australia accept our draconian
59 copyright laws.</font></P>
60 <hr>
61 </blockquote>
62 <p><font face="Arial"><B><FONT size=4>Definition of terms used on this
63 page -</FONT></B></font></p>
64
65 <P><font face="Arial"><B>COPYRIGHT - </B>The legal right given to a writer, composer, artist,
66 or a distributor to exclusive production, sale, or distribution of their
67 work. <BR><B>Why does COPYRIGHT exist?</B> <BR>It allows artists to profit
68 from their work.&nbsp; Profit, in turn, creates an incentive to work and
69 distribute the work.</font></P>
70
71 <P>&nbsp;</P>
72
73 <P><font face="Arial"><B>PUBLIC DOMAIN</B> - the status of publications, products, and
74 processes that are not protected under patent or copyright.&nbsp; All
75 images at this site are in the public domain, and have been for several
76 hundred years. <BR><B>Why does PUBLIC DOMAIN exist?</B> <BR>It exists to
77 allow the free exchange of knowledge.&nbsp; If it did not, museums would
78 be allowed to keep images under perpetual copyright, thus denying everyone
79 the opportunity to view, critique, or otherwise examine works. <BR>Please
80 note that most 20th century works of art are not yet considered part of
81 the PUBLIC DOMAIN. <BR><FONT size=-1>Click
82 <a href="http://www.unc.edu/~unclng/public-d.htm">here</a> to view a chart of
83 when works pass into the public domain.</FONT> </font></P>
84
85 <P>&nbsp;</P>
86
87 <P><font face="Arial"><B>FAIR USE</B> - Fair use is a limitation on the exclusive rights of
88 the copyright owner; in other words, it allows reasonable public access to
89 copyrighted works. <BR>The idea is an important part of the English
90 common-law tradition. <BR><B>Why does FAIR USE exist?</B> <BR>FAIR USE
91 allows people to use images and written works without compensating the
92 original writer/creator, as long as they act in good faith and do not
93 profit from reproducing the work.&nbsp; Education, parody, criticism, news
94 reporting, etc are all examples of fair use. <BR>The idea of FAIR USE has
95 guided the use of reproductions of works for years.&nbsp; In most cases,
96 the lack of commercial gain is necessary for a claim of fair use.&nbsp; If
97 you are a non-profit website designed for educational purposes, you are in
98 the perfect position to claim FAIR USE of images which are already in the
99 PUBLIC DOMAIN. </font></P>
100 <blockquote>
101 <HR width="100%">
102
103 </blockquote>
104
105 <P align="center"><i><font face="Arial">
106 <img border="0" src="copyrightelizabeth.jpg" align="left" alt="Wm Scrots's portrait of 13 year old Princess Elizabeth, c1546" width="250" height="334"></font></i></P>
107
108 <P><i><font face="Arial">Yes, we live in a world where the Scrots portrait
109 of the future Queen Elizabeth I is considered to be under copyright - but
110 Elizabeth's own letters / speeches / poetry have been in the public domain
111 for centuries....&nbsp; Funny.</font></i></P>
112
113 <P><font face="Arial">For a long time, the FAIR USE doctrine occupied a grey area of law,
114 usually decided on a case-by-case basis.&nbsp; Typically, if someone were
115 profiting from another person's work which was not in the PUBLIC DOMAIN,
116 it was not considered fair use.&nbsp; Museums typically did not sue
117 non-profit websites which reproduced images for educational
118 purposes.&nbsp; If they had, the court would have forced them to prove a
119 substantial loss of profit from the use.&nbsp; Understandably, such proof
120 would not exist and the court would not look favorably upon such a
121 vindictive case, particularly since the images were already in the public
122 domain. </font> </P>
123 <P><font face="Arial">However, on 18th February 1999, the grey area was cleared
124 considerably.&nbsp; Fair Use was no longer a murky legal issue to be
125 debated by webmasters and museums.&nbsp; The United States District Court
126 for the Southern District of New York decided the following case -
127 </font>
128</P>
129 <CENTER>
130 <P><font face="Arial"><B>The Bridgeman Art Library, Ltd., Plaintiff, - versus - Corel
131 Corporation, et ano., Defendants.</B> <BR><B>97 Civ. 6232
132 (LAK)</B></font></P></CENTER>
133 <P><font face="Arial"><B>Their decision was one of the most important copyright decision
134 affecting museums ever filed.&nbsp; The decision was based on both US and
135 UK copyright law.</B> </font> </P>
136 <P><font face="Arial"><B>WHO WAS INVOLVED IN THE CASE &amp; WHAT WAS IT ABOUT?</B> <BR>The
137 Bridgeman Art Library had made photographic reproductions of famous works
138 of art from museums around the world (works already in the public
139 domain.)&nbsp; The Corel Corporation used those reproductions for an
140 educational CD-ROM without paying Bridgeman.&nbsp; Bridgeman claimed
141 copyright infringement. </font> </P>
142 <P><font face="Arial"><B>WHAT DID THE COURT DECIDE?</B> <BR>The Court ruled that
143 reproductions of images in the public domain are not protected by
144 copyright if the reproductions are slavish or lacking in originality.
145 </font> </P>
146 <P><font face="Arial">In their opinion, the Court noted:&nbsp; ''There is little doubt that many
147 photographs, probably the overwhelming majority, reflect at least the
148 modest amount of originality required for copyright protection....&nbsp;
149 But 'slavish copying', although doubtless requiring technical skill and
150 effort, does not qualify.'' </font> </P>
151 <P><font face="Arial"><B>In other words, an exact reproduction of an image in the public
152 domain does not possess creativity itself.&nbsp; Therefore, the
153 reproduction is not protected under copyright law.</B> </font> </P>
154 <P><font face="Arial"><B>WHY IS THIS IMPORTANT?</B> <BR>It's important to me because it
155 allows me to share the beautiful images at my sites.&nbsp; But it's
156 important to everyone because it means that museums cannot assert
157 perpetual copyright to works.&nbsp; In other words, museums cannot take a
158 picture of an old painting about to become part of the public domain,
159 claim a new copyright through the reproduction, and do the same process
160 over and over so that the painting never truly enters the public
161 domain.&nbsp; They would simply be taking the work from one private domain
162 to another, thus invalidating the spirit of copyright law. <BR>In short,
163 simply transferring an exact image from one medium to another does not
164 create a new copyright. </font> </P>
165 <P><font face="Arial"><B>WHAT DOES THE DECISION COVER?</B> <BR>This decision concerns only
166 reproductions of two-dimensional works (like paintings or drawings.)&nbsp;
167 Reproductions of three-dimensional works, such as sculpture, possess the
168 necessary creativity for a separate copyright - after all, the
169 photographer must choose an angle to shoot from, lighting, backdrop,
170 etc&nbsp; In other words, he is not merely reproducing an exact image.
171 </font>
172</P>
173 <P><font face="Arial">Also, please note that a non-exact reproduction of
174 an image is not covered.&nbsp; </font> </P>
175 <P><font face="Arial">This is an important point - only EXACT COPIES of the paintings are
176 affected by the decision.&nbsp; The decision is based upon the correct
177 premise that 'slavish copies' do not possess any originality or creativity
178 of their own, and are thus ineligible for copyright. </font> </P>
179 <P><font face="Arial">The Court explained this point further: <BR>''There has been no
180 independent creation, no distinguishable variation from pre-existing
181 works, nothing recognizably the author's own contribution''....</font></P>
182 <P><font face="Arial">This merely reflected an earlier ruling by the Supreme Court which
183 stated that "sweat of the brow" (for example, the act of reproducing a
184 work) is not the "creative spark" which deserves copyright.</font></P>
185 <P><font face="Arial"><B>THE ENTIRE TEXT OF THE COURT'S RULING IS AVAILABLE ONLINE at the
186 First Amendment Law Library -</B> <BR><B><A
187 href="http://www.constitution.org/1ll/court/fed/bridgman.html">http://www.constitution.org/1ll/court/fed/bridgman.html</A></B>
188 </font>
189 </P>
190 <P><font face="Arial">I encourage visitors to read the decision.&nbsp; Judge Kaplan is
191 remarkably concise, particularly when compared to other jurists.&nbsp;
192 (Note: the original decision has been replaced by Judge Kaplan's
193 memorandum opinion after Bridgeman moved for reargument and
194 reconsideration following his summary judgment.)</font></P>
195 <P></P>
196 <blockquote>
197 <HR width="100%">
198
199 </blockquote>
200
201 <P><font face="Arial">It is interesting to note that many museums, and the American
202 Association of Museums, were unhappy that Bridgeman brought the case
203 against Corel, surmising (correctly, it turned out) that the Court would
204 not rule in their favor.&nbsp; In fact, the Court quoted a former general
205 counsel from the Museum of Modern Art, New York in rendering its decision<FONT size=4>.&nbsp; </FONT><BR>
206 Museum directors, like everyone else, knew that exact reproductions did
207 not possess the necessary creativity to have their own copyright.&nbsp;
208 After all, if such a standard did exist, I could copy out John Keats's
209 poetry word-for-word and then claim I was entitled to a copyright to the
210 poems.&nbsp; Such an idea is ludicrous.&nbsp; Keats's poetry
211 is in the public domain.</font></P>
212 <P><font face="Arial">And if his original poems are in the public domain, why aren't
213 portraits of him painted at the same time?&nbsp; </font> </P>
214 <P><font face="Arial">Exactly.&nbsp; They are - museums would just prefer otherwise.</font></P>
215 <P><B><FONT size=4 face="Arial">In closing, I would like to point out three things -
216 </FONT></B></P>
217 <P><font face="Arial"><B>First, the Bridgeman vs Corel decision will not bankrupt
218 museums.&nbsp;</B> It is true that museums make money selling
219 reproductions of the images in their collections.&nbsp; However,
220 commercial publishers will still want a high quality reproduction of the
221 image which can only truly be provided by the museum which controls access
222 to the painting; publishers don't care much about copyright, only the
223 best-looking image.&nbsp; Webmasters, at best, can only scan reproductions
224 and even the best scanner cannot capture the quality of a museum-approved
225 reproduction.&nbsp; And webmasters are not selling reproductions which
226 claim to be made by the museums which own the original work; that would be
227 fraudulent and illegal.&nbsp; </font> </P>
228 <P><font face="Arial"><B>Second, most museums hold their collections in the public trust and
229 exist primarily as educational/cultural facilities.&nbsp; </B>The public domain
230 images in their collections are exactly that - in the public domain, and
231 we are the public.&nbsp; Most museums also receive money and special tax
232 breaks from the cities/states/countries in which they are located.&nbsp;
233 Why?&nbsp; Because they are public institutions.&nbsp; </font> </P>
234 <P><font face="Arial"><B>Third - and perhaps most importantly - copyrights and public domain
235 and fair use are all terms which exist together for a reason.
236 </B><BR><B>Copyrights are necessary because</B> they allow artists/writers
237 to profit from their own work.&nbsp; And profit, of course, provides
238 incentive to create more work. <BR><B>Public Domain is necessary
239 because</B> it allows for the free exchange of ideas, a necessary part of
240 life in a free society. <BR><B>Fair Use is necessary because</B> it allows
241 the public some access to copyrighted work, as long as they do not profit
242 from it.&nbsp; After all, you should not be allowed to essentially steal
243 money for another person's hard work.&nbsp; However, fair use allows news
244 reporting, book reviews, research reports, educational works, etc to
245 discuss the work. </font> </P>
246 <P><font face="Arial"><B>Or, as the US Supreme Court put it:</B> <BR><B>"Creative work is to
247 be encouraged and rewarded, but private motivation must ultimately serve
248 the cause of promoting broad public availability of literature, music, and
249 the other arts. The immediate effect of our copyright law is to secure a
250 fair return for an "author's" creative labor. But the ultimate aim is, by
251 this incentive, to stimulate artistic creativity for the general public
252 good."</B></font></P>
253 <P><b><font face="Arial">Or, as I put it:<br>Why should a museum's
254 copyright exceed the artist's personal copyright?&nbsp; Yes, that's right
255 - artists and their descendants do not receive money from museums making
256 reproductions of their works.&nbsp; Why?&nbsp; Because the works are in
257 the public domain.&nbsp; Copyright has passed for the artist!&nbsp; They
258 can no longer profit from their work.&nbsp; Yet museums are claiming they
259 possess an endless copyright of the work simply because they own the
260 original (which is in the public domain.)&nbsp; If it sounds absurd, well,
261 it is absurd.&nbsp; It's absurd and offensive and illegal.</font></b></P>
262 <P><b><font face="Arial">Take a moment to imagine Van Gogh's heirs suing
263 over all those coffee mugs with his famous sunflowers, or the endless
264 posters of his starry skies.&nbsp; Exactly.&nbsp; You would laugh at the
265 news.&nbsp; Now take a moment to laugh at museums.&nbsp; </font></b></P>
266 <blockquote>
267 <HR width="100%">
268
269 </blockquote>
270
271 <P><font face="Arial">In a perfect world, the artist profits from their work for a very
272 lengthy period of time and then the work becomes part of our cultural
273 heritage. </font></P>
274
275 <P><font face="Arial">In our imperfect world, however, museums often attempt to
276 intimidate webmasters and others into either paying large sums for
277 reproduction rights, or to remove the images entirely.&nbsp; They count
278 upon webmasters having neither the legal knowledge to defend their rights
279 or having money to hire legal counsel.&nbsp; Most museums, of course, have
280 large budgets and numerous attorneys.&nbsp; And they know it's far easier
281 to intimidate the 'little guy' rather than a wealthy company which can tie
282 a case up in court for many expensive years.</font></P>
283
284 <P><font face="Arial">They also know that
285 Bridgeman vs Corel has clarified the formerly vague concept of fair
286 use.&nbsp; Before, they could shape fair use to their own needs.&nbsp; Now,
287 however, fair use has been quite clearly defined. </font></P>
288
289 <P><font face="Arial">It is important to
290 remember that museums were first created in the 18th century to allow the
291 public free access to their cultural treasures, not to make money selling
292 t-shirts, mugs, posters, etc&nbsp; I understand that they wish to raise
293 funds for their work, but - as I explained earlier - Bridgeman vs Corel
294 will not bankrupt museums.&nbsp; After all, in the early 1980s, the movie
295 industry believed VCRs would destroy Hollywood.&nbsp; Obviously, that
296 hasn't happened.</font></P>
297
298 <P><font face="Arial">In light of the Bridgeman vs Corel decision, museums
299 have decided to focus on controlling access rather than subverting the
300 concept of public domain.&nbsp; This, too, has led to some rather
301 questionable practices.&nbsp; Think about it for a moment - if a unique
302 work of art is in the public domain and the museum willfully disallows
303 access to the work (for reproduction purposes), aren't they guilty of
304 creating a monopoly?&nbsp; And of attempting to create an illegal
305 perpetual copyright?&nbsp; Just a few points to ponder, among many others.</font></P>
306 <blockquote>
307 <HR width="100%">
308
309 </blockquote>
310
311 <P><font face="Arial">I have (very quickly) created this page to help webmasters understand
312 their rights.&nbsp; I apologize if something is explained badly, or not at
313 all.</font></P>
314 <P><font face="Arial"><B>Please keep in mind that the all-important Bridgeman vs Corel
315 decision applies only to exact reproductions of two-dimensional works of
316 art already in the public domain.</B> <BR>And so drawings of
317 Winnie-the-Pooh, for example, which are still under copyright, cannot be
318 reproduced on your webpage; neither can a book written in 1970, or a song
319 recorded in 1950, or painting made in 1945.&nbsp; Unfortunately, copyright
320 extensions are a fact of life throughout most of the world.&nbsp; In the
321 US, for example, copyright has been extended 11 times in the last 40
322 years.&nbsp; However, all works prior to the 20th century are in the
323 public domain.&nbsp; <a href="http://www.unc.edu/~unclng/public-d.htm">
324 Check the charts</a> for 20th century works.</font></P>
325 <P><font face="Arial">Remember - when in doubt, ask.&nbsp; <A
326 href="http://www.nolo.com/">Nolo.com</A> has a great legal advice section.
327 </font>
328 </P>
329 <P><font face="Arial">And give thanks to the US District Court for the
330 Southern District of New York.&nbsp; In our age of increasing mergers
331 between large, global multi-media companies and the pre-eminence of a few
332 large museums, it's possible that - one day - a handful of
333 companies/museums could control access to most of the great works of art
334 in human history.&nbsp; Public domain guarantees us access to those works,
335 and without it we would be....&nbsp; Well, we would be stuck at the table
336 of mediocrity, denied our right to explore the best parts of our heritage. </font></P>
337 <P align="center"><font face="Arial">-<i>Marilee</i><br></font></P>
338 <blockquote>
339 <hr>
340 </blockquote>
341 <P align=center><b><font face="Arial">Updates and Links</font></b></P>
342 <P align=left><FONT size=2 face="Arial">For now (October 2004), the Bridgeman decision
343 stands.&nbsp; If anything changes, I will post it here.</FONT></P>
344 <P align=left><font face="Arial" size="2">Please note that
345 <a href="http://www.iht.com/articles/114102.html">recent EU-sponsored
346 copyright changes</a> further extend copyright terms of 20th century works.&nbsp;
347 Books, music, etc which might have been scheduled to pass into the public
348 domain are now protected for several more decades.&nbsp; (Yet another
349 sell-out to the growing 'content industry'....)&nbsp; If you live in
350 Europe, please research the new terms.&nbsp; If the above link has
351 expired, simply type 'EU copyright law 2003' into a search engine and
352 start exploring.&nbsp; Though most articles focus on digital music and
353 film, the law applies to all creative works.&nbsp; It's even worse than the DMCA.&nbsp;
354 Egads!&nbsp; I never thought a law could be worse than the DMCA.</font></P>
355 <P align=left><font face="Arial" size="2">Please
356 <a href="http://www.cni.org/Hforums/cni-copyright/1999-02/0084.html">click
357 here</a> to read an interesting 'question and answer' about Bridgeman.&nbsp;
358 Professor Ochoa's response is reasonable and apt, particularly this
359 comment: 'Where the public does not have access to the original painting,
360 the ONLY way it has to reproduce the painting itself is to reproduce a
361 reproduction of it. Unless we hold that the Bridgeman photographs can be
362 freely copied, the painting, as a practical matter, is not in the public
363 domain.'&nbsp; <br>In other words, unless museums are willing to allow
364 people to photograph the original work, the paintings are not truly in the
365 public domain.&nbsp; I do disagree with his closing comment, in which he
366 attempts to distinguish between US copyright law and other nations.&nbsp;
367 The concepts of 'fair use' and 'public domain' are recognized on an
368 international level.&nbsp; Also, is a person making a slavish photographic
369 reproduction of a work of art truly the <i>author</i> of the photograph?&nbsp;
370 This point was discussed in the Bridgeman decision.&nbsp; The term <i>
371 copyist</i> is far more appropriate, despite the amount of work involved
372 in taking the photograph.&nbsp; An apt comparison is this (earlier
373 discussed with the example of Keats's poetry) - if a
374 photographer who merely reproduces a work of art is the <i>author</i> of
375 the reproduction, then someone who copies a novel out word-for-word is
376 also its <i>author</i>.&nbsp; Clearly, this cannot be the case.&nbsp; Yet
377 the amount of work required to photograph the painting is the same as the
378 work involved in copying out a book by hand.&nbsp; <b>In other words, <i>
379 labor</i> does not imply originality, or a creative spark.</b>&nbsp; You
380 can take three minutes or three days to make a reproduction.&nbsp; You can
381 use a camera or Martian technology.&nbsp; It doesn't matter.&nbsp; You are
382 merely copying the work.&nbsp; If it
383 seems as though I'm being simplistic here, rest assured that I am - and it
384 is deliberate.&nbsp; This issue is very simple and analogies help reveal
385 the simplicity.</font></P>
386 <P align=left><font face="Arial" size="2">In any case, Bridgeman vs Corel
387 was not concerned with the <i>processes</i> of reproduction
388 since those are covered by patent law.&nbsp; It was concerned with
389 copyright.&nbsp; Copyright exists to reward the creative spark /
390 originality.&nbsp; It does not exist to reward labor.&nbsp; </font></P>
391 <P align=left><font face="Arial" size="2">You may wonder why I'm going on
392 and on about the photography angle.&nbsp; It's because museums have made
393 it their new argument for copyright protection and against Bridgeman.&nbsp;
394 They claim the court did not fully understand or appreciate the labor
395 involved in making photographic reproductions.&nbsp; But they are being
396 disingenuous, as my above paragraph demonstrates.&nbsp; Also, Judge Kaplan
397 most assuredly considered the labor involved.&nbsp; No one is denying that
398 photographers labor to create the reproduction.&nbsp; But why should that
399 work be used to create a perpetual copyright for something in the public
400 domain?!&nbsp; Museums are mute on that point.&nbsp; The photographers are
401 paid for their labor.&nbsp; The museums deny the public access to the
402 works and therefore control the 'licensing' of the best reproductions.&nbsp;
403 They are paid for the licenses.&nbsp; Who suffers in this situation?&nbsp;
404 The public!&nbsp; By law, we should be able to go to a museum and demand
405 access to a painting in the public domain so we can take photographs.&nbsp;
406 But museums won't let us!&nbsp; I know this because I've tried it.&nbsp;
407 Museums simply don't want competition for their 'officially-licensed'
408 merchandise.&nbsp; It's all about profit, - if they were concerned with
409 'artistic integrity', they would allow the public right of access or
410 provide an approved, high-quality reproduction to anyone who asked.&nbsp;
411 Don't hold your breath waiting for that to happen....&nbsp; </font></P>
412 <P align=left><font face="Arial" size="2">If the concept of public domain
413 is to have any meaning at all, then exact photographic reproductions
414 cannot be given copyright.&nbsp; It's a matter of principle - and common
415 sense - and public interest.</font></P>
416 <p align="center"><br>
417 <font face="Arial"><font size="2">
418 <a href="http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/">Opposing Copyright Extension,
419 Protecting the Public Domain</a><br></font><font size="1">The best source
420 on the internet.&nbsp; It contains information on the disastrous Jan 2003 Eldred
421 ruling by the US Supreme Court.</font></font></p>
422 <P align="center"><a href="http://englishhistory.net">
423 <font size="2" face="Arial">to EnglishHistory.net</font></a></P>
424 </td>
425 <td width="13%" height="610"></td>
426 </tr>
427</table>
428
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