Thursday, October 20, 2005

Copyright Wars

This past week I inadvertently became embroiled in a copyright dispute with the National Portrait Gallery in London. Several years ago I created a website about my historical doll collection and the history behind the dolls and the historical figures they represent. One of my site pages features pictures of Queen Elizabeth I and dolls that have been created to represent her. On that page is composited pictures of Queen Elizabeth dolls with historical portraits of the Virgin Queen painted in the 16th century. Because of the age of the portraits of Elizabeth, I was not concerned about copyright because such works are solidly in the public domain.

Well, I got an e-mail from the image librarian of the National Portrait Gallery last week insisting that I was in violation of copyright because they had the portrait in their collection and they do not let anyone else take photographs of it so I must have gotten the portrait illegally from their website. They asked where I got the image. With several years in between now and when I created the website I couldn't remember but being a work in the public domain I was certain it really didn't matter. I had been to copyright workshops and had been told that the U. S. courts do not recognize a simple reproduction (termed a "slavish" copy) of a two-dimensional work of art as copyrightable. This view was recently reinforced with the ruling issued in the BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP. case.

I consulted our university copyright expert and she said my understanding of the law was consistent with prevailing interpretation. So I responded thus:

"I would like to respectfully point out that most of these portraits were created during the reign of the monarch depicted and therefore copyright has expired long ago. U.S. courts have ruled that a simple reproduction of a work that adds no artistic elements to the original work is not an enforceable capyright because subsequent reproductions could not be distinguished from any others. Possession of a work of art does not confer any copyright privileges to the owner. Unfortunately, this is a main point of contention between museums in particular, and other members of the public.

I would also like to point out that my website is not a commercial site. It is intended for educational purposes only and the derivative images that I created are small and low resolution and not injurious to the profitability of purveyors offering products featuring high quality reproductions. I did not obtain the images from your website and have used them in good faith under my understanding of U.S. copyright laws and the provisions for fair use. I would be happy to include a link to your website to encourage visitors to my site to learn more about British Royalty."

The librarian was undeterred, insisting:

"At present, UK and US copyright law does afford copyright to photographs taken of works that are out of copyright, although I am aware of the Bridgeman v Corel case to which you are referring and which in many experts' opinions reached the wrong decision (it is certainly not binding in the UK, and doubtful even in the US). In any case it has set no precedent. " (I found this comment a little odd. He is esstentially saying a case that has received a ruling by the U.S. Supreme Court is not binding in the U.S. and sets no precedent ???)

He went on to explain how the gallery's financial resources are limited and that it is expensive to provide images of their collection online for the public to view. He attached a license agreement with the expectation that I would sign it and pay the fees stated.

I replied:

"Although I am a faculty member at the University of Oregon, the website in question was one that I created with my own resources on my own time at home because of my personal interest in history and collecting historical dolls. The site was not produced to support a fee-based or tuition-based course and the University has no claim to copyright for the material included in it. My footer reference providing permission for free use of any of the materials on the site for educational purposes is granting permission for use of my own copyrighted works. The image composites I produced for this site have an obvious artistic element that is substantially different from the original work especially since the doll photographs are my own. I am well aware of the time involved and costs of creating an online image archive as you can see from my own photo archive (see the link below) that contains almost 6,000 of my originial images. I hope you also note that I have granted permission for all visitors to use any of my images in the collection for non-commercial educational purposes through a Creative Commons license. I think the problem here is the apparent difference in our philosophical approach to knowledge sharing. I would think it would be far more advantageous to you to have visitors driven to your site for further information and an opportunity to view the original works in a quality high-resolution format and possibly generate a desire to physically visit your museum or purchase some of your museum-based products than it is to try to limit the non-commercial use and appreciation of art that is essentially part of our collective heritage.
I'm afraid I must decline to complete your license agreement as I do not agree with your interpretation of copyright law. I'm truly sorry you object to my modest efforts to produce a site intended solely to encourage an interest in British history by using a contemporary interest in a collectible art form."

In their reply, the gallery representative explained that they did not have the resources to prosecute every case of infringement so they were willing to provide licensed images of the portraits in question (4) from their website as long as I provided a credit line and link to their website. I thought this would be a reasonable solution until I went up to their website and found that the only images they had available were small (almost thumbnail-sized), dark images that would be totally unsuitable for making any kind of comparison of facial features and costume designs between the doll and the portrait.

So I wrote back to them and said the images they were offering were totally unsuitable for the educational purpose of my site.

They replied that they could supply better quality images but they would cost 25 pounds each. By this time I was getting pretty irritated about the whole business.

I replied:

I will not degrade my website by including totally unsuitable images. The images I am presently using are satisfactory and I do not need high resolution images. I do not acknowledge your claim for copyright on any of the images I am using as I did not obtain them from you (which is obvious since your website has only dark, almost thumbnail-sized images displayed on it) and the courts have not upheld copyright based on a simple, non-enhanced reproduction of two-dimensional art:
U.S. Law (abstract)
"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, 98 L. Ed. 630, 74 S. Ct. 460 (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." [n37]

[23] The requisite "distinguishable variation," moreover, is not supplied by a change of medium, as "production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection." [n38]

[24] There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. "Elements of originality . . . may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved." [n39] But "slavish copying," although doubtless requiring technical skill and effort, does not qualify. [n40] As the Supreme Court indicated in Feist, "sweat of the brow" alone is not the "creative spark" which is the sine qua non of originality. [n41] It therefore is not entirely surprising that an attorney for the Museum of Modern Art, an entity with interests comparable to plaintiff's and its clients, not long ago presented a paper acknowledging that a photograph of a two-dimensional public domain work of art "might not have enough originality to be eligible for its own copyright." [n42]

[25] In this case, plaintiff by its own admission has labored to create "slavish copies" of public domain works of art. While it may be assumed that this 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.

United Kingdom Law

[26] While the Court's conclusion as to the law governing copyrightability renders the point moot, the Court is persuaded that plaintiff's copyright claim would fail even if the governing law were that of the United Kingdom.

[27] Plaintiff's attack on the Court's previous conclusion that its color transparencies are not original and therefore not copyrightable under British law depends primarily on its claim that the Court failed to apply Graves' Case, a nisi prius decision and the supposedly controlling authority that plaintiff did not even cite in its opposition to defendant's motion for summary judgment.

[28] Graves' Case in relevant part involved an application to cancel entries on the no longer extant Register of Proprietors of Copyright in Paintings, Drawings and Photographs for three photographs of engravings. [n43] In rejecting the contention that the photographs were not copyrightable because they were copies of the engravings, Justice Blackburn wrote:

"The distinction between an original painting and its copy is well understood, but it is difficult to say what can be meant by an original photograph. All photographs are copies of some object, such as a painting or statue. And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of the statute." [n44]

[29] Plaintiff and the amicus therefore argue that plaintiff's photographs of public domain paintings are copyrightable under British law. But they overlook the antiquity of Graves' Case and the subsequent development of the law of originality in the United Kingdom.

[30] Laddie, a modern British copyright treatise the author of which now is a distinguished British judge, discusses the issue at Bar in a helpful manner:

"It is obvious that although a man may get a copyright by taking a photograph of some well-known object like Westminster Abbey, he does not get a monopoly in representing Westminister Abbey as such, any more than an artist would who painted or drew that building. What, then, is the scope of photographic copyright? As always with artistic works, this depends on what makes his photograph original. Under the 1988 Act the author is the person who made the original contribution and it will be evident that this person need not be he who pressed the trigger, who might be a mere assistant. Originality presupposes the exercise of substantial independent skill, labour, judgment and so forth. For this reason it is submitted that a person who makes a photograph merely by placing a drawing or painting on the glass of a photocopying machine and pressing the button gets no copyright at all; but he might get a copyright if he employed skill and labour in assembling the thing to be photocopied, as where he made a montage. It will be evident that in photography there is room for originality in three respects. First, there may be originality which does not depend on creation of the scene or object to be photographed or anything remarkable about its capture, and which resides in such specialties as angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques etc: in such manner does one photograph of Westminster Abbey differ from another, at least potentially. Secondly, there may be creation of the scene or subject to be photographed. We have already mentioned photo-montage, but a more common instance would be arrangement or posing of a group . . . Thirdly, a person may create a worthwhile photograph by being at the right place at the right time. Here his merit consists of capturing and recording a scene unlikely to recur, eg a battle between an elephant and a tiger . . ." [n45]

[31] Moreover, the authors go on to question the continued authority of Graves' Case under just this analysis:

"It is submitted that Graves' Case (1869) LR 4 QB 715 (photograph of an engraving), a case under the Fine Arts Copyright Act 1862, does not decide the contrary, since there may have been special skill or labour in setting up the equipment to get a good photograph, especially with the rather primitive materials available in those days. Although the judgments do not discuss this aspect it may have been self-evident to any contemporary so as not to require any discussion. If this is wrong it is submitted that Graves' Case is no longer good law and in that case is to be explained as a decision made before the subject of originality had been fully developed by the courts. [n46]

[32] This analysis is quite pertinent in this case. Most photographs are "original" in one if not more of the three respects set out in the treatise and therefore are copyrightable. Plaintiff's problem here is that it seeks protection for the exception that proves the rule: photographs of existing two-dimensional articles (in this case works of art), each of which reproduces the article in the photographic medium as precisely as technology permits. Its transparencies stand in the same relation to the original works of art as a photocopy stands to a page of typescript, a doodle, or a Michelangelo drawing. [n47]

[33] Plaintiff nevertheless argues that the photocopier analogy is inapt because taking a photograph requires greater skill than making a photocopy and because these transparencies involved a change in medium. But the argument is as unpersuasive under British as under U.S. law.

[34] The allegedly greater skill required to make an exact photographic, as opposed to Xerographic or comparable, copy is immaterial. As the Privy Council wrote in Interlego AG v. Tyco Industries, Inc., [n48] "skill, labor or judgment merely in the process of copying cannot confer originality . . . ." [n49] The point is exactly the same as the unprotectibility under U.S. law of a "slavish copy."

[35] Nor is the change in medium, standing alone, significant. The treatise relied upon by plaintiff for the contrary proposition does not support it. It states that "a change of medium will often entitle a reproduction of an existing artistic work to independent protection." [n50] And it goes on to explain:

"Again, an engraver is almost invariably a copyist, but his work may still be original in the sense that he has employed skill and judgment in its production. An engraver produces the resemblance he wishes by means which are very different from those employed by the painter or draughtsman from whom he copies; means which require a high degree of skill and labour. The engraver produces his effect by the management of light and shade, or, as the term of his art expresses it, the chiaroscuro. The required degree of light and shade are produced by different lines and dots; the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print." [n51]

[36] Thus, the authors implicitly recognize that a change of medium alone is not sufficient to render the product original and copyrightable. Rather, a copy in a new medium is copyrightable only where, as often but not always is the case, the copier makes some identifiable original contribution. In the words of the Privy Council in Interlogo AG, "there must . . . be some element of material alteration or embellishment which suffices to make the totality of the work an original work." [n52] Indeed, plaintiff's expert effectively concedes the same point, noting that copyright "may" subsist in a photograph of a work of art because "change of medium is likely to amount to a material alteration from the original work, unless the change of medium is so insignificant as not to confer originality . . ." [n53]

[37] Here, as the Court noted in its earlier opinion, "it is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium." [n54] There has been no suggestion that they vary significantly from the underlying works. In consequence, the change of medium is immaterial. "

At this point, the only offer I can make as a courtesy to you is to include a reference: The original portrait of Elizabeth I by Marcus Gheeraerts the Younger may be viewed at the National Portrait Gallery, London, England. I will link this reference to your website. "

The gallery representative replied that he had already explained why the Beckman vs. Corel case did not apply to their images (or should I say the portraits in their collection). He said since he was not making any progress and I refused their more than reasonable offer, there was nothing more he could do but report me to the university webmaster. He also said it was a shame that my website would continue to be unauthorized and unlicensed.

I replied that I had been in constant consultation with the university copyright expert and, in fact, the person I had been cc'ing on all of my responses was the university copyright expert. However, he was more than welcome to communicate with her directly.

I'm afraid I feel no SHAME for using public domain work for noncommercial educational purposes. I guess I won't be visiting the National Portrait Gallery when I travel to London in March.

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