Bridgeman Art Library v. Corel Corp.

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Bridgeman Art Library v. Corel Corp.
United States District Court for the Southern District of New York
Full case nameThe Bridgeman Art Library, Ltd. v. Corel Corporation
Date decidedFebruary 18, 1999
Case history
Prior actionsJudgment for defendants, 25 F. Supp. 2d 421 (S.D.N.Y. 1998)
Case holding

Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable under US law is originality.


Laughing Cavalier, 1624, by Frans Hals. Bridgeman's image of this was the example used in the case.







First judgment[edit]

On November 13, 1998, Judge Kaplan granted the defendant's motion for a summary dismissal of the suit. The court applied UK law to determine whether the plaintiff's photographs were copyrightable in the first place, and applied US law to determine whether copyright had been infringed. It determined that Bridgeman's photographs were not original works, and could not be validly copyrighted under UK law. It further determined that even if the photographs were copyrightable, no infringement could be deemed to have occurred under US law, because the only way in which Bridgeman's and Corel's photographs were similar was that "both are exact reproductions of public domain works of art," so the only similarity between the two works was an uncopyrightable element: the public domain material itself. Therefore, under well-settled US law, there could be no infringement.[1][2]

In the judgment, Kaplan noted that the court would have reached the same result had it applied US law throughout.[1][2]

Plaintiff motions[edit]


The court also received an unsolicited letter from William F. Patry, who argued that the court had been incorrect to apply UK law at all. The plaintiff moved for the court to receive an amicus curiae brief from The Wallace Collection, addressing the UK law issue.[1]



At the outset, it is worth noting that the post-judgment flurry was occasioned chiefly by the fact that the plaintiff failed competently to address most of the issues raised by this interesting case prior to the entry of final judgment. In particular, while plaintiff urged the application of UK law, it made no serious effort to address the choice of law issue and no effort at all (apart from citing the British copyright act) to bring pertinent UK authority to the Court's attention before plaintiff lost the case. Indeed, it did not even cite Graves' case, the supposedly controlling authority that the Court is said to have overlooked.


Second judgment[edit]



The court inferred from the provisions of the BCIA, and the absence of US law to the contrary, that Congress had not granted foreign law the power to determine the issue of copyrightability in US copyright actions.[1][5] In other words, Congress did not adopt the Second Restatement's rule, under which the law of the state with the most direct relation to the property (i.e. the UK in this case) would apply. In particular, the wording of section 4(a) of the BCIA prohibits copyrights from being claimed "by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto". The application of UK law in the case would be in reliance upon the Berne Convention, therefore it could not apply and US law should be used to determine the copyrightability of the Bridgeman photographs.[5]



Although the second judgment was based upon application of US law, Kaplan added that "[w]hile 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."[4] He referred to the Privy Council case of Interlego v Tyco Industries for equivalent case law in the UK, where it had been held that "[s]kill, labour or judgment merely in the process of copying cannot confer originality". Further, the Privy Council had held in Interlego that "[t]here must [...] be some element of material alteration or embellishment which suffices to make the totality of the work an original work", rendering the mere change in medium of a work, on its own, not sufficient for copyrightability. Thus the question of originality and copyrightability of a "slavish copy", even one where the medium changed (i.e. from a painting to a photograph, and thence to a digitization of that photograph), would be decided the same under UK law as under US law.[1]

Subsequent jurisprudence[edit]





Relevance to UK law[edit]

As a US court case, Bridgeman Art Library v. Corel Corp. is not binding upon UK courts.[1][10] However, because it follows dicta in Interlego, and cites Justice Laddie, it serves to raise doubt in UK law as to the originality of photographs that exactly replicate other works of art. An additional problem with taking the case as precedent would be reconciling it with the decision in Walter v Lane, given that an analogy can be made between the skills exercised by a journalist in verbatim reporting of a speech and the skills exercised by a photographer in exactly reproducing a work of art. However, v Rodney Fitch & Co. also held that a slavish copy, such as re-using a photographic negative, re-photographing a print, or re-creating the effect of an earlier photograph, would not constitute an original work. Similarly, Lord Oliver's dicta in Interlego held that the effort of copying, itself, does not constitute originality.[10][11]

The significance of the case and the doubts that it raised prompted the private Museums Copyright Group in the UK to commission an in-depth report on the case and to seek the opinion of Jonathan Rayner James, Q.C., a barrister who specialized in UK copyright law and a co-author of Copinger and Skone James on copyright. Rayner James' opinion, as reported by the group in a press release, was:[1]




However, the review of UK authorities in the second judgment of Bridgeman Art Library v. Corel Corp. does highlight several points in UK law. For example, it draws attention to the fact that Graves' Case, dating as it does from 1867, no longer reflects the law of originality in the UK, in light of later cases such as Interlego.[1][8]

The Bridgeman Art Library itself stated in 2006 that it is "looking for a similar test case in the UK or Europe to fight which would strengthen [its] position".[13]

In November 2015, the Intellectual Property Office of the United Kingdom issued an official guide for individuals and businesses titled "Copyright Notice: digital images, photographs and the internet" that offers a judgment similar to that of Bridgeman v. Corel, stating that:


In November 2017, 27 prominent art historians, museum curators and critics (including Bendor Grosvenor, Waldemar Januszczak, Martin Kemp, Janina Ramirez, Robin Simon, David Solkin, Hugh Belsey, Sir Nicholas Goodison, and Malcolm Rogers) wrote to The Times newspaper to urge that "fees charged by the UK's national museums to reproduce images of historic paintings, prints and drawings are unjustified, and should be abolished". They commented that "[m]useums claim they create a new copyright when making a faithful reproduction of a 2D artwork by photography or scanning, but it is doubtful that the law supports this". They argued that the fees inhibit the dissemination of knowledge, the very purpose of public museums and galleries, and so "pose a serious threat to art history". They therefore advised the UK's national museums "to follow the example of a growing number of international museums (such as the Netherlands' Rijksmuseum) and provide open access to images of publicly owned, out-of-copyright paintings, prints and drawings so that they are free for the public to reproduce".[15]

See also[edit]


  1. ^ a b c d e f g h i j k l m n o p q r s t u v Simon Stokes (2001). Art and copyright. Hart Publishing. pp. 103–104. ISBN 978-1-84113-225-9.
  2. ^ a b c d e f g h i Nancy E. Wolff (2007). The Professional Photographer's Legal Handbook. Allworth Communications, Inc. pp. 6–9. ISBN 978-1-58115-477-1.
  3. ^ 4 LRQB 715 (1869)
  4. ^ a b c Lewis A. Kaplan (2002). "The Bridgeman Art Library Ltd. v. Corel Corporation". In John Henry Merryman and Albert Edward Elsen (ed.). Law, ethics, and the visual arts (4th ed.). Kluwer Law International. pp. 405–408. ISBN 978-90-411-9882-2.
  5. ^ a b c Paul L.C. Torremans (2001). "Choice of Law Regarding Copyright and the Dead Sea Scrolls: The Basic Principles". In Timothy H. Lim; Hector L. MacQueen; Calum M. Carmichael (eds.). On scrolls, artefacts and intellectual property. Continuum International Publishing Group. pp. 117–123. ISBN 978-1-84127-212-2.
  8. ^ a b c Susan M. Bielstein (2006). Permissions, a survival guide: blunt talk about art as intellectual property. University of Chicago Press. pp. 42–46. ISBN 978-0-226-04638-9.
  10. ^ a b Catherine Colston; Kirsty Middleton (2005). "Copyright Principles, Copyright Works and Related Rights". Modern Intellectual Property Law (2nd ed.). Routledge Cavendish. p. 273. ISBN 978-1-85941-816-1.
  11. ^ Hector L. MacQueen; Charlotte Waelde; Graeme T. Laurie (2007). Contemporary intellectual property: law and policy (2nd ed.). Oxford University Press. pp. 52–55. ISBN 978-0-19-926339-4.
  13. ^ Bridgeman Art Library (2006). "Memorandum submitted by Bridgeman Art Library". Protecting and Preserving Our Heritage: Written Evidence. House of Commons: Culture, Media and Sport Committee, Great Britain (The Stationery Office). Ev 56. ISBN 978-0-215-02833-4. HC 912-II.
  14. ^ "Copyright Notice: digital images, photographs and the internet" (PDF). UK IPO. Retrieved 12 December 2015.
  15. ^ Grosvenor, Bendor; et al. (November 6, 2017). "Museums' fees for image reproduction". The Times. p. 34.

Further reading[edit]

External links[edit]