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Tuesday, 15 May 2007

IPKat special report: QM's workshop on Bridgeman v Corel

The IPKat is grateful to Dr Christine Riefa, ace lecturer at Brunel University, for the following report on the recent copyright workshop which took place at Queen Mary.


Should photographs of two-dimensional works of art attract copyright protection?

This was the main question examined on 3 May at an event organised by Queen Mary University, Centre for Commercial Law Studies in conjunction with BAPLA (the British Association of Picture Libraries and Agencies) and the Bridgeman Art Library. The conference revisited the decision in Bridgeman Art Library v Corel Corporation (New York Southern District Court 1999).

In the case under discussion, the Corel Corporation, a Canadian software company, was distributing clip art CDs in the USA. The Bridgeman Art Library, based in London, sued Corel for the use of around 120 pictures without authorisation. The court was applying UK law and found that no copyright protection was granted to “slavish recreation” of works of art because of lack of originality.

For photographs to be protected by copyright laws in the UK as artistic works, the work must be fixed and original. Photographs are defined by section 4(2) of the CDPA 1988 as “ a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced and which is not part of a film”. Given the nature of the work, photographs are fulfilling the fixation criterion. However, in the absence of a unified definition of what is an original work, much controversy surrounds the protection of photographs reproducing two-dimensional artistic works.


IPKat guest blogger, Dr Christine Riefa (right)

Presentations during the day were of excellent calibre and included a technical master class by fine art photographer Philip de Bay on the techniques used to retain the essence of a painting being photographed. This led the audience to understand how in some circumstances it is possible to envisage how taking a “slavish” copy is in fact displaying skill, labour and judgement, all essential requirements of originality. This is so because the photographer has, amongst other things, to select the necessary equipment, and to decide on the appropriate angle and lighting in order to render the true intensity of a painting.

The day ended with an entertaining re-enactment of the case. Professor Adrian Sterling was acting for the claimant and Dr Uma Suthersanen for the defence. Having listened to, and considered all arguments put forward during the day in favour of each parties by eminent experts, Richard Edwards, acting as the judge, found in favour of the claimant. He accepted the claimant’s argument that a photograph was not a painting and that therefore, it could not be a mere copy of the painting. He considered that a good photograph of a work of art, even a two-dimensional one, owes it to the skill, labour and judgement of the photographer and as a result should be protected. Although doubt was expressed as to whether or not such photograph would fulfil the requirement of an “author’s own intellectual creation” under the EC Directive, this issue did not need to be decided as it was not the case in point. The defence had mainly argued that the protection of slavish copies would be detrimental to the public interest, especially with regards to the reproduction of works of art in the public domain. The judge decided that whilst it is clear that the protection of photographs of two-dimensional works of art may be seen to be detrimental to the public interest, it would be for Parliament to consider and not for the courts.

4 comments:

Luke Ueda-Sarson said...

Wish I could have been there, or there was a web-cast.

So "in some circumstances it is possible" for photographs of paintings to attract copyright, since sometimes "the photographer has, amongst other things, to select the necessary equipment, and to decide on the appropriate angle and lighting in order to render the true intensity of a painting".

Presumably in circumstances where this is not the case, no copyright will ensue? For example where there is no human photographer (many reproductions are done by automated scanning systems these days), or where the 2-dimensional object (sic) being recorded is not in need of "an appropriate angle to render the true 'intensity' (sic) of the [object]" - ie. the work is truly 2-dimensional to the human eye, as opposed to many paitings, which due to the use of oils, etc or clearly 3-dimensional.

After all, nobody expects what are known as 'photocopies' to attract copyright, presumably because they are so obviously mechanical reproductions and truly slavish. If human skill is needed, the surely the copying can't be "slavish"?

But what of the case where human skill is not technically required, because a computerized system could do the job, but human skill was in fact used, due to the photographer being for example too poor to afford the set-up?

Does the sweat-of-the-brow doctrine still live in the UK, as it does in Australia, or was the consideed opinion that is has fallen away, as in the US?

Regards, Luke

Sophy said...

Hi Luke,

There will soon be links to the presentations from various websites - when the films have been put into FLASH format, I'll post here which sites you can see the talks from. It was a very inspiring event.

William Patry said...

Baruch Hashem for the Feist decision and U.S. standards of originality.

Jeremy said...

Richard Bridge (King, Prior & Co) has emailed the IPKat to add: "The NY court was plainly wrong, and has not grasped the threshold of originality in English law at all. Your audience was plainly right". Thanks, Richard.

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