1 | <html>
|
---|
2 |
|
---|
3 | <head>
|
---|
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">
|
---|
6 | <meta name="content" content="right to display public domain images Bridgeman vs Corel copyright">
|
---|
7 | <meta name="GENERATOR" content="Microsoft FrontPage 5.0">
|
---|
8 | <meta name="ProgId" content="FrontPage.Editor.Document">
|
---|
9 | <meta http-equiv="Content-Type" content="text/html; charset=windows-1252">
|
---|
10 | <meta http-equiv="Content-Language" content="en-us">
|
---|
11 | <title>The Right to Display Public Domain Images: Copyright and fair use,
|
---|
12 | Bridgeman vs Corel, museums vs the public, etc</title>
|
---|
13 | <style fprolloverstyle>A:hover {color: #0000FF; font-weight: bold}
|
---|
14 | </style>
|
---|
15 | </head>
|
---|
16 |
|
---|
17 | <body link="#0000FF" vlink="#0000FF" alink="#0000FF">
|
---|
18 |
|
---|
19 | <table border="0" cellpadding="3" width="100%" height="667">
|
---|
20 | <tr>
|
---|
21 | <td width="14%" height="29"></td>
|
---|
22 | <td valign="top" width="73%" height="29"> </td>
|
---|
23 | <td width="13%" height="29"></td>
|
---|
24 | </tr>
|
---|
25 | <tr>
|
---|
26 | <td width="14%" height="3"></td>
|
---|
27 | <td width="73%" height="3" bgcolor="#000000"> </td>
|
---|
28 | <td width="13%" height="3"></td>
|
---|
29 | </tr>
|
---|
30 | <tr>
|
---|
31 | <td width="14%" height="610"></td>
|
---|
32 | <td valign="top" width="73%" height="610">
|
---|
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. 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. 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> I had to share this news with public domain
|
---|
46 | advocates. 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. Her response? The copyright term
|
---|
51 | should be "forever minus one day".</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? If she had her way, you wouldn't be able to read The
|
---|
55 | Bible for free. Please consider this issue when you vote. This
|
---|
56 | is one of the great unreported stories in the US, Europe and now, sadly,
|
---|
57 | Australia. 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. Profit, in turn, creates an incentive to work and
|
---|
69 | distribute the work.</font></P>
|
---|
70 |
|
---|
71 | <P> </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. 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. 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> </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. 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. In most cases,
|
---|
96 | the lack of commercial gain is necessary for a claim of fair use. 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.... 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. 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. Museums typically did not sue
|
---|
117 | non-profit websites which reproduced images for educational
|
---|
118 | purposes. If they had, the court would have forced them to prove a
|
---|
119 | substantial loss of profit from the use. 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. Fair Use was no longer a murky legal issue to be
|
---|
125 | debated by webmasters and museums. 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. 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 & 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.) The Corel Corporation used those reproductions for an
|
---|
140 | educational CD-ROM without paying Bridgeman. 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: ''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....
|
---|
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. 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. But it's
|
---|
156 | important to everyone because it means that museums cannot assert
|
---|
157 | perpetual copyright to works. 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. 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.)
|
---|
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 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. </font> </P>
|
---|
175 | <P><font face="Arial">This is an important point - only EXACT COPIES of the paintings are
|
---|
176 | affected by the decision. 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. Judge Kaplan is
|
---|
191 | remarkably concise, particularly when compared to other jurists.
|
---|
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. 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>. </FONT><BR>
|
---|
206 | Museum directors, like everyone else, knew that exact reproductions did
|
---|
207 | not possess the necessary creativity to have their own copyright.
|
---|
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. Such an idea is ludicrous. 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? </font> </P>
|
---|
214 | <P><font face="Arial">Exactly. 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. </B> It is true that museums make money selling
|
---|
219 | reproductions of the images in their collections. 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. Webmasters, at best, can only scan reproductions
|
---|
224 | and even the best scanner cannot capture the quality of a museum-approved
|
---|
225 | reproduction. 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. </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. </B>The public domain
|
---|
230 | images in their collections are exactly that - in the public domain, and
|
---|
231 | we are the public. Most museums also receive money and special tax
|
---|
232 | breaks from the cities/states/countries in which they are located.
|
---|
233 | Why? Because they are public institutions. </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. 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. After all, you should not be allowed to essentially steal
|
---|
243 | money for another person's hard work. 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? Yes, that's right
|
---|
255 | - artists and their descendants do not receive money from museums making
|
---|
256 | reproductions of their works. Why? Because the works are in
|
---|
257 | the public domain. Copyright has passed for the artist! They
|
---|
258 | can no longer profit from their work. 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.) If it sounds absurd, well,
|
---|
261 | it is absurd. 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. Exactly. You would laugh at the
|
---|
265 | news. Now take a moment to laugh at museums. </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. They count
|
---|
278 | upon webmasters having neither the legal knowledge to defend their rights
|
---|
279 | or having money to hire legal counsel. Most museums, of course, have
|
---|
280 | large budgets and numerous attorneys. 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. Before, they could shape fair use to their own needs. 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 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. After all, in the early 1980s, the movie
|
---|
295 | industry believed VCRs would destroy Hollywood. 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. This, too, has led to some rather
|
---|
301 | questionable practices. 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? And of attempting to create an illegal
|
---|
305 | perpetual copyright? 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. 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. Unfortunately, copyright
|
---|
320 | extensions are a fact of life throughout most of the world. In the
|
---|
321 | US, for example, copyright has been extended 11 times in the last 40
|
---|
322 | years. However, all works prior to the 20th century are in the
|
---|
323 | public domain. <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. <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. 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. Public domain guarantees us access to those works,
|
---|
335 | and without it we would be.... 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. 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.
|
---|
347 | Books, music, etc which might have been scheduled to pass into the public
|
---|
348 | domain are now protected for several more decades. (Yet another
|
---|
349 | sell-out to the growing 'content industry'....) If you live in
|
---|
350 | Europe, please research the new terms. If the above link has
|
---|
351 | expired, simply type 'EU copyright law 2003' into a search engine and
|
---|
352 | start exploring. Though most articles focus on digital music and
|
---|
353 | film, the law applies to all creative works. It's even worse than the DMCA.
|
---|
354 | Egads! 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.
|
---|
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.' <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. I do disagree with his closing comment, in which he
|
---|
366 | attempts to distinguish between US copyright law and other nations.
|
---|
367 | The concepts of 'fair use' and 'public domain' are recognized on an
|
---|
368 | international level. Also, is a person making a slavish photographic
|
---|
369 | reproduction of a work of art truly the <i>author</i> of the photograph?
|
---|
370 | This point was discussed in the Bridgeman decision. The term <i>
|
---|
371 | copyist</i> is far more appropriate, despite the amount of work involved
|
---|
372 | in taking the photograph. 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>. Clearly, this cannot be the case. 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. <b>In other words, <i>
|
---|
379 | labor</i> does not imply originality, or a creative spark.</b> You
|
---|
380 | can take three minutes or three days to make a reproduction. You can
|
---|
381 | use a camera or Martian technology. It doesn't matter. You are
|
---|
382 | merely copying the work. If it
|
---|
383 | seems as though I'm being simplistic here, rest assured that I am - and it
|
---|
384 | is deliberate. 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. It was concerned with
|
---|
389 | copyright. Copyright exists to reward the creative spark /
|
---|
390 | originality. It does not exist to reward labor. </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. It's because museums have made
|
---|
393 | it their new argument for copyright protection and against Bridgeman.
|
---|
394 | They claim the court did not fully understand or appreciate the labor
|
---|
395 | involved in making photographic reproductions. But they are being
|
---|
396 | disingenuous, as my above paragraph demonstrates. Also, Judge Kaplan
|
---|
397 | most assuredly considered the labor involved. No one is denying that
|
---|
398 | photographers labor to create the reproduction. But why should that
|
---|
399 | work be used to create a perpetual copyright for something in the public
|
---|
400 | domain?! Museums are mute on that point. The photographers are
|
---|
401 | paid for their labor. The museums deny the public access to the
|
---|
402 | works and therefore control the 'licensing' of the best reproductions.
|
---|
403 | They are paid for the licenses. Who suffers in this situation?
|
---|
404 | The public! 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.
|
---|
406 | But museums won't let us! I know this because I've tried it.
|
---|
407 | Museums simply don't want competition for their 'officially-licensed'
|
---|
408 | merchandise. 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.
|
---|
411 | Don't hold your breath waiting for that to happen.... </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. 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. 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 |
|
---|
429 | </body>
|
---|
430 |
|
---|
431 | </html><!-- text below generated by server. PLEASE REMOVE --><!-- Counter/Statistics data collection code --><script language="JavaScript" src="http://hostingprod.com/js_source/geov2.js"></script><script language="javascript">geovisit();</script><noscript><img src="http://visit.webhosting.yahoo.com/visit.gif?us1108082656" alt="setstats" border="0" width="1" height="1"></noscript>
|
---|
432 | <IMG SRC="http://geo.yahoo.com/serv?s=76001524&t=1108082656" ALT=1 WIDTH=1 HEIGHT=1>
|
---|