Who Owns This Image? Art, Access, and the Public Domain After Bridgeman v. Corel

04-30-2008 | 03:42 PM EST

On April 29, 2008, The New York City Bar Association's Great Hall was the setting for a one-and-a-half hour public panel discussion on the Bridgeman v. Corel ruling of 1999. The discussion, cosponsored by Art Law Committee, New York City Bar Association, College Art Association, ARTstor, Creative Commons, and Art Resource, was comprised of a distinguished group of panel members. Moderated by Virginia Rutledge, Chair, Art Law Committee, New York City Bar Association, Vice President and General Counsel Creative Commons, the audience in the filled-to-capacity Hall heard from Dr. Theodore Feder, President, Art Resource, Artists Rights Society; Hon. Lewis A. Kaplan, United States District Court, Southern District New York; Christopher Lyon, Executive Editor, Prestel Publishing; William Patry, Senior Copyright Counsel, Google; and Maureen Whalen, Associate General Counsel, J. Paul Getty Trust.

The evening began with Rutledge explaining that there was a change in the panel lineup. Because Hon. Richard A. Posner, United States Court of Appeals, 7th Circuit, was unable to attend, Hon. Lewis A. Kaplan served as his replacement. This change added a particularly exciting and unexpected twist to the discussion as Kaplan was the presiding judge in the case that was to be discussed. Following this announcement and a brief introduction of each of the panel members, Rutledge quickly summarized the case for the audience and set the stage for some of the points that would be discussed by the panelists in-depth. Finally, before passing the podium off to Kaplan, Rutledge took the assembly through a brief discussion (visually aided by a PowerPoint presentation) of the copyright confusion that persists to this day over the "difference between a reproduction and the real thing."

Judge Kaplan prefaced his evening's remarks with the disclaimer that he has "vast respect" for photographers and artists in general. From there he took the audience first through a brief history of copyright itself followed by a detailed look at the thinking process that led to his ruling in Bridgeman v. Corel. Of particular note were three key copyright concepts which Kaplan attributed to Justice Laddie and considered when making his ruling: originality of rendition, originality of timing, and originality with respect to subject matter. Through the use of anecdotes which brought laughs to the room, Kaplan explained that originality of rendition referred to the skill that goes into making the artistic work, originality of timing has to do with the artist being in "the right place at the right time," and originality with respect to subject matter deals with the unique way that the artist poses and arranges the subject matter. In the end, Kaplan believed that Bridgeman's claims simply failed to meet these standards. In conclusion, Kaplan related to the audience that his ruling in Bridgeman v. Corel was not indicative of some general stance he has against photographers and their claims to copyright. In fact, he explained that just two years ago, he presided over another case where he felt the photographer did show substantial grounds for copyright claims. That case was ultimately heard by a jury who found in favor of the photographer.

Dr. Feder took the microphone next and explained that he would "dispute rather strongly" with the Bridgeman ruling. Feder began by asserting that Kaplan's decision was actually an anomaly with scant support. Furthermore, Feder pointed out that the decision was made only in a lower court and he did not believe it was a matter of "settled law." From there, Feder went on to question whether under different circumstances Kaplan wouldn't have ruled differently. Specifically, Feder cited Kaplan's own written remarks deriding Bridgeman's attorney. Had it not been for this "regretable" lawyer, Feder asked, would the ruling have gone a different way? In regards to originality and skill, Feder argued that the photographers involved in making faithful reproductions of public domain works actually bring great individual talent and technique to each photograph they create — thereby questioning the claims against originality in these cases. Lastly, Feder noted that beyond the copyright questions, museums typically require an additional contract for use of their digital reproductions, which he felt further supported the argument against rulings like the Bridgeman case.

The third panelist to speak, Christopher Lyon, brought in the art book publisher's perspective. The crux of Lyon's remarks centered on separating the "photograph from the photographer" and the idea that, in publishing, a photograph's rights are typically determined by how the photograph is used. While Feder maintained that the originality of the photo lay in the unique skills of the photographer taking the photograph, Lyon argued that the photographer (in this very narrow field) was actually only one of usually five people who come together to make the photo happen. And, in fact, creativity and individuality "have no role to play." The photographer does not "compose" the image according to Feder; the editor and designer order something very specific which ultimately dictates the shot that the photographer takes. Feder went on to say that when dealing with photographs that faithfully reproduce without adding to the subject, the image must be "transparent to its subject." In conclusion, Feder asked "why is the institution given exclusive rights" when all of these forces work together to make the image happen?

After a momentary pause and quip by the commentator that the panelists were all being way too polite, the reigns of the discussion were handed over to Maureen Whalen. Whalen began by describing her professional and legal background and set out to paint her ideas as potentially different in that she takes a practical approach to the law. Interspersed with jokes about putting copies of public domain works on shower curtains, Whalen had the audience simultaneously laughing and pondering the bigger abstract questions. What is the role of the museum in providing/curating this type of image? Why is there something like twenty times more licensing going on in the UCLA library now compared to just six years ago? What kind of timeline should we even expect these types of decisions to be made in? Whalen did say that she thinks "that the museum world in general wants to do the right thing." But, she also pointed out that "we're dealing with four hundred year old paintings. We can't expect expediency." In the end, Whalen suggested that the ultimate goal for a museum in this debate should be to "maintain curatorial integrity of objects."

The final panelist of the evening was William Patry. After some opening remarks describing his former and extensive work with the federal government, Patry went on to declare that we shouldn't look to the government to solve this problem. He further explained his belief that any solutions that are reached will probably have to be private ones. From there, Patry asserted that Bridgeman was actually a "mainstream straightforward decision" and he defended the ruling and its strength — even though some others took exception to the fact that it was decided in a lower court. The heart of Patry's remarks came in the form of a question, "Why is copyright such a big deal?" Patry compared copyright status to magical fairy dust that got sprinkled on works thereby validating them and the artist. To which he followed up with, "you really wouldn't want your self worth determined by the copyright office." In short, Patry argued that copyright status really isn't the ruler of worth.

At the end of the evening there was only time for a very short question and answer session that touched on topics ranging from whether the quality of reproduction had any bearing on copyright infringement to how much society's attitudes and fashions affect how public domain is understood to patent and trademark issues. The night concluded with a final thought raised by an audience member who teaches at the Brooklyn Law School — regardless of the Bridgeman decision, in the end, the risk of litigation is simply too high, so most people continue to pay for the licenses and obtain the permissions just to avoid a lawsuit.

For my part, I and the friends I attended the discussion with all thought that it was a lively debate which raised as many good questions as it sought to resolve. One thing that we noted was lacking, though, was the perspective of the photographers themselves. It would have been very interesting to have had photographers on the panel to discuss how the Bridgeman decision directly affects them and what they see as their rights in this matter. It would have also been great to give photographers a voice in the debate over how much the artist is an original, creative, autonomous being in this type of work versus simply a skilled technician taking orders and inputting as little of their own vision into the work as possible. Moreover, it would have been extremely useful to have the panelists discuss the consequences of the Bridgeman ruling and the other hypothetical outcomes put forth. If that final supposition is true, that regardless of the ruling against Bridgeman people still continue to treat these types of work as copyrightable (requiring licensing and permission), then it would almost seem that the spirit of the society supersedes the spirit of the law. And in that case, for those of us on the side of looser copyright restrictions, maybe our focus really needs to be on changing the attitudes of average citizens rather than the laws that govern them.

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