Bridgeman loses copyright claim

The Bridgeman Art Library’s claims against Corel Corporation have been dismissed by a New York court.

Photographic reproductions of paintings were held not to be protected by copyright in their own right.  They lack originality, a key ingredient for protection of any artistic work.

Corel marketed a set of CD-ROMs, “Masters CD-ROM”, containing 700 digital reproductions of well known paintings by old masters (all the paintings were public domain).  Corel claimed it obtained the images from 35mm slides owned by a California company, Off the Wall Inc.  Bridgeman claimed that Corel had infringed its rights in around 120 of its images.

Bridgeman had no direct evidence that its transparencies had been copied, but claimed that since the owners of the paintings all strictly limit access to the works, and since Bridgeman’s transparencies were the only authorised transparencies in some cases, the images in Corel’s collection must have been copies of Bridgeman’s.

Bridgeman argued that its transparencies were original for three reasons:

  1. The change of medium from painting to photograph.
  2. Because colour correction bars were attached to its images.
  3. Because photography requires artistic talent and originality.

The judge disagreed on all counts.  On the key issue of creativity, the judge decided that although almost all photography is sufficiently original to be protected by copyright, a photograph which is merely a copy of someone else’s work is not an original work in its own right.  The judge drew an analogy with photocopying:  “Surely designing the technology to produce exact reproductions of documents required much engineering talent, but that does not make the reproductions copyrightable … skill, labour or judgment merely in the process of copying cannot confer originality.”

The decision was based on UK copyright law but the judge said that he would have reached the same result under US law.

This decision is not binding on UK courts as US decisions are only “persuasive”.  Barring a successful appeal, however, it is likely to be accepted by the industry as a clear statement that museums and photo libraries cannot use copyright law to protect photographs of two dimensional artistic works.  If a photograph of a painting is not protected it must also be doubtful whether there can be any separate copyright in a digital scan.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.