Public Domain Imagery Redux

Lewis Hine's Powerhouse Mechanic, 1920

Lewis Hine, Powerhouse Mechanic, 1920 – Don’t buy this image image! It’s in the public domain and can be obtained through the National Archives here.

A few weeks ago I posted a screed against large photographic stock companies like Corbis and Getty selling images in the public domain. Turns out, there is a legal precedent for this very behavior and guess what, it’s potentially illegal! At the very least, the reproductions being sold are likely not copyrightable.

In 1999, Lewis A. Kaplan, U.S. District Judge, Southern District of New York, wrote the opinion on the case Bridgeman Art Library, Ltd. against Corel Corporation, in which Bridgeman sued Corel Corp. for releasing a CD-ROM of reproductions of public domain artworks Bridgeman allegedly controlled. The court decided that reproductions of public domain works are not copyrightable because they lack originality and the express purpose is to provide a surrogate of the work represented. To quote Judge Kaplan’s opinion, which can be found in its entirety here:

“While it may be assumed that this [reproducing the works in question] required both skill and effort, there was no spark of originality – indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.”

The decision quotes a previous case, too, which eloquently states:

“Absent a genuine difference between the underlying work of art and the copy of it for which protection is sought, the public interest in promoting progress in the arts – indeed, the constitutional demand [citation omitted] – could hardly be served. To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work. Even in Mazer v. Stein, [347 U.S. 201 (1954)], which held that the statutory terms ‘works of art’ and ‘reproduction of works of art’. . . permit copyright of quite ordinary mass-produced items, the Court expressly held that the objects to be copyrightable, ‘must be original, that is, the author’s tangible expression of his ideas.’ 347 U.S. at 214, 74 S.Ct. 468, 98 L.Ed. at 640. No such originality, no such expression, no such ideas here appear.”

To find more information about cases involving art, technology, copyright, and intellectual property, see the Fair Use Network’s Reference Cases page here.

Posted by: Ian M.


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