I had previously been under the impression that the photographed reproductions of public domain artwork were copyrighted - further research has made me question whether this is always the case. I wanted to clarify whether the below is indeed an exception, and if so how strong a protection it is.

While searching for public domain images on Wikimedia I found the following: "The official position taken by the Wikimedia Foundation is that 'faithful reproductions of two-dimensional public domain works of art are public domain'." After checking the subsection for the United States, where I live, I found another statement that "Under the rule in Bridgeman Art Library v. Corel Corporation, a mere 'record' photograph of a 2D work of art (i.e. a photograph which is an as-accurate-as-possible copy of the original) acquires no copyright protection."

After reading the article on this case, it seems to be correct that the above is a non-binding but influential precedent, if not law, so long as the reproduction is a "slavish copy" of the original. It's impressive to me that an organization as large as Wikimedia is willing to rely on this ruling, but I also wanted to get an outside opinion.

So, is all the above true, and if so how strong a legal protection is this precedent? Is there anything else I should know about using it?

A secondary question, if the above holds, would be whether this precedent would also allow the use of "slavish copies" that are on websites hosted outside of the United States if I myself live in the U.S.

Bounty Edit: While I'm grateful for the answer I received, I'm making a bounty available for someone who provides a robust and practicable answer directly applicable to the USA. Thanks.

  • Which jurisdiction are you interested in? In some places the answer is "yes", in others it's "no". – Mark Apr 19 '18 at 23:38
  • @Mark: I move around a bit, but my current place of residence is in Illinois. – Era Apr 20 '18 at 0:07

German perspective:

In German law, there is the concept of Schöpfungshöhe (threshold of originality), which is required for authorship rights (Urheberrecht) to apply to a work.

Basically, the idea is that a minimum of creativity is required for something to be protected. However, that bar is rather low. Thus, for example:

  • Literary works are protected practically always.
  • Maps are generally protected, even though you might argue they "slavishly copy nature", because the act of choosing what to show and what not is already creative.
  • However, a faithful photographic reproduction of a painting is not eligible for Urheberrecht to apply (LG Berlin, AZ 15 O 428/15)

So yes, a "slavish copy" of a work would not qualify for protection if there is no creativity involved.

Note, however, that other types of protection apart from Urheberrecht might apply, such as Sui generis database right.

  • 1
    The US has the same concept. The precedent that introduced it, though, also declared that database rights don't exist in the US. – cHao Apr 20 '18 at 17:20

Bridgeman Art is only binding in New York's Southern District, but the reasoning from its line of cases has been adopted by the Seventh Circuit and Tenth Circuit, and by district courts in California and New Mexico, and it has been tacitly accepted by the Eleventh Circuit.

I'm not particularly surprised that Wikimedia is relying on it, as it seems like an almost foregone conclusion anyway. Generally speaking, anything that is slavish is not original (Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988)), and anything that is not original acquires no copyright protection (Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 363 (1991)).

As to the second question, U.S. copyright law would not be offended by your use of unprotected material on a foreign-hosted website, but the country where it is hosted, or the country where the author of the slavishly copied work lives, or really any country, for that matter, would be free to impose its own restrictions on your use.

Practically speaking, this should not be much of a concern in most cases; Wakanda can pass a law purporting to govern your use of a copyrighted work, even if it has no connection to you or the author, but that doesn't mean it can reach into Illinois to enforce the law. More likely, any country hosting American-sourced web content is going to be a party to the Berne Convention, and those countries are generally in agreement that they cannot obtain jurisdiction over a copyright case simply because an infringing website is hosted or accessible there.

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