Public Panel Discussion
Cosponsored by the Art Law Committee, New York City Bar Association; the College Art Association; ARTstor; and Creative Commons
A couple of notes: I’m struck by the similarity between museum image licensing and archive claims to rights in scanned documents—the claims to copyright are often the same, even though the archive claims are laughable even by the standards of the anti-Bridgeman side, because that side generally agrees that photocopies and other images that don’t require high technical skill to create don’t get new copyrights of their own. The reason that the archive and museum claims are the same is that the reason they want copyright—to control, and maybe if they’re lucky get paid for, uses of copies of the underlying public domain work—is the same; the theory that it’s the skill of the photographer that creates the copyright has nothing to do with the incentives or values at issue.
Also, the claim that specialized creative skills are required to create very good copies of public domain works seems very dependent on technology. Engravings are copyrightable because they visibly bear the marks of the engraver—different engravings of the same work look different. Well-done art photographs of public domain works really don’t—there were a bunch of examples on display at the panel, and I’m sure that experts could tell you the differences between them, but I would have just called them reproductions of the underlying work. The remaining claim to authorship is the judgment required to set up the photo, which is not particularly evident on the face of the photo. But as technology improves so that red-eye correction and other tweaks become standard, even the required judgment will recede, becoming perhaps at most technique or style rather than individual expression. A relevant data point might be Clay Shirky’s example of high-dynamic range photography, a technique that used to be very specialized and difficult and has, through Flickr and related social software, become much easier to learn and carry out (with the assistance of special computer programs).
I also wondered how often museums actually register the copyright in their photos of artworks. This may be one reason damages might often be low.
Virginia Rutledge, Chair, Art Law Committee, New York City Bar Association,
Vice President and General Counsel Creative Commons:
People continue to comply with assertions of copyright in photos of public domain images. Why? The claim that Bridgeman is wrong is a claim that access to a unique copy should also trigger control over all reproductions of that copy. What happens when both access to the underlying work and the photo of the work are restricted?
Judge Kaplan: Elements of photos deserving copyright: (1) Originality of rendition—angle of shot, exposure, lighting, filters, developing techniques—the focus must be on the effect of those technical choices on the image, as distinct from whether the choices took knowhow or skill. (2) Originality of timing—choice or pure dumb luck about the split second at which the photographer pressed the button. (3) Originality of composition.
What to do when the effort and the effect is to produce as close an identity as possible between the photograph and an underlying work of art? There’s nothing original about the timing or subject matter/composition. So originality must lie in rendition. Of course there are important choices about lighting and exposure that go into world-class photos. But he concluded in Bridgeman that such choices were closer to the “sweat of the brow” than the spark of originality required by Feist. The underlying artist is the one who controlled the effect; the photographer was trying to replicate that effect as best s/he could.
Judge Kaplan ended by expressing uncertainty over whether the award for a successful copyright claim would be worth the cost of litigation.
Dr. Theodore Feder, President, Art Resource, Artists Rights Society: This was a problem of a bad plaintiff’s attorney, as Judge Kaplan noted. He didn’t challenge the claim that the photos were “slavish copies.” Judge Kaplan had no alternative but to find for Corel. But that doesn’t make Bridgeman settled law—it’s just a district court opinion. Professional photos of artwork require creativity and professional judgment, which is why museums hire experts. (Comment: Also true of those who frame paintings for museums?)
It’s also important to remember that museums use contracts, which create separate obligations on users regardless of copyright.
The Victoria & Albert Museum and the Met have taken steps to make images available for scholarly use for free. But they haven’t renounced copyright—this is a way to meet scholarly needs while still being compensated for commercial use.
Christopher Lyon, Executive Editor, Prestel Publishing: He spent an hour at MOMA yesterday planning a complex shoot for an art book. Skill is definitely required, but photographs are not photographers. Photos of 2-D artworks are an extremely narrow category of photos; and there are distinctions in there—photos of photos, for example, in which MOMA claimed copyright, versus photos of marginally 3-D paintings using impasto or collages. Regardless, the convention of publishing is to eliminate dimensionality in images; photos that depart from that standard are compromised commercially.
Creativity has no role to play. The photographer doesn’t choose the subject. The photographer doesn’t compose the image. S/he may be instructed to capture details, but in an age of hi-res, the editor/author will want to select details themselves. The lighting is usually highly constrained. The lighting must be sufficient and even to reproduce the colors accurately in a four-color reproduction process, which is why color bars usually appear on the outside edge of an image.
To the extent the photographer includes shadows, unless specifically instructed to do so, the photo is compromised. To a significant extent, the photo’s status in publishing is determined not by what it is but by how it’s used. That’s why licensors want print run information. An image can be positively valued for its inexpressiveness, its transparency to its subject. That’s how images of 2-D works are used in art world publishing, in which a photographer is part of a team including a production person, who works with the author/curator/artists (not with the photographer), the sizer, the separator who oversees color correction, and the pressmen who realize the preceding decisions in the actual printing. (Comment: my way of expressing this is that even if the original photo is copyrightable, the ultimate copy in the printed work could easily be so different that it wouldn’t infringe the thin copyright in the original photo. Under the intermediate fair use cases like Galoob and Kelly, that would get the publisher off the hook for infringement, though licensing remains an issue.)
Maureen Whalen, Associate General Counsel, J. Paul Getty Trust: She asked others at the Getty: Just because we’re rich enough to own 400-year-old paintings, why do we have the right to control uses of the images? Why not let them appear on shower curtains? Ken Hamma made the case in D-lib that museums should be putting these works out there as part of the mission, but the Getty hasn’t agreed.
The museum world is struggling with the principled basis for its policies. Licensing activity has exploded, but the staff is not there. Once the principles are articulated, museums need to figure out how to maintain the curatorial integrity of the artworks—and still put them on shower curtains. On a practical level, if you use an image of a public domain artwork owned by the Getty, and don’t use the Getty’s name other than in a First Amendment context, you won’t get a cease & desist letter from her.
William Patry, Senior Copyright Counsel, Google: As in-house counsel for a frequent defendant, he has no luxury to cross his fingers like Maureen and hope things work out. Don’t look to Congress for any help. If they can solve orphan works at the 1% successful level, it will be a bonus. Any solutions will have to be private.
As a former Copyright Office lawyer, he finds Bridgeman a standard application of the law; US copyright has no different standard of originality or shorter term for photographs, making it more generous than other countries. Bridgeman applies Feist, which pointed out that some compilations are protectable and some aren’t. Ditto photos. Judge Hand’s statement (which was also the statement of a mere district judge) was dictum in every sense; Justice Holmes also said that handwriting reflects personality, but he wasn’t suggesting protecting it. Originality is our standard, and it is fact-specific.
Anyway, why does copyright matter? Is it a validation of your worth as a photographer? Of the worth of a photo? The copyrightability standard is really low, and not real testimony to any sort of value. Artists should define their self-worth in other ways—peers, the market. Copyright is not a ruler for determining worth. If we assume (wrongly) that museums hire photographers for skill, not price, then that should be its own indicator of the value of skill. If someone is reproducing your reproduction, they’re not copying what you contributed; although people are reaping where they haven’t sown, they’re reaping what the original artist sowed. The incentive argument doesn’t make much sense to him in this case.
Rutledge: If I take a really excellent photo of the Mona Lisa, and you use it in your book, but the printing process strips out the excellent elements, have you infringed? (This is my intermediate works argument above.)
Judge Kaplan: Infringement requires copying and substantial similarity in the original elements of the works. If the reproduction is sufficiently poor that any original contribution disappears, there’s nothing left.
Patry: You set out to infringe, but you didn’t.
Rutledge: You might not need the very best image to illustrate your argument. Why not go scan someone else’s image from a book?
Whalen: If there’s a 400-year-old painting with a high-quality reproduction in a book, under Bridgeman you can scan the picture from the book (and put it on a shower curtain).
Feder: That violates our rights. The work isn’t in the public domain unless Bridgeman governs. If so, people like me who run institutions providing images will fold, and that’s a bad result.
If you really believe what Lyons said, why hire a skilled photographer at all? Why not some guy off the street?
Lyons: Not denying skill, denying originality from a publishing perspective. We don’t want your special snowflake interfering with our photo of the underlying public domain work!
Q from audience: Is this really a nonlegal question about how we perceive and consume art in a highly materialist world where we think about shower curtains, not about the public domain? Would Feder be comfortable with a world in which lower-quality images circulated freely, competing with the controlled images?
Q from editor of ArtForum: What about the money? If we said “damn the torpedoes” and fought a lawsuit, the fight alone would put us out of business.
Lyons: Commercial art publishers have their backs against the wall, just as you do, and the price of images is a big part of that. $30,000 for an average art book almost instantly makes it unpublishable. Publishing is distorted and skewed—the books that are published are different: they’re financed/supported by people with a professional or financial stake in the artist. The authority of the books suffers, and works created for the general public suffer.
Feder: We do reduce fees for books with lots of illustrations.
Jason Mazzone, Brooklyn Law School: How much impact did Bridgeman really have? I’m just going to obtain the license even if I think Judge Kaplan was right because the risk of litigation is just too high; my publisher won’t let me rely on Bridgeman.
Lyons: The weight of legal responsibility and risk has shifted to the author.
Patry: If the author has to indemnify, then for goodness sakes’ s/he shouldn’t have to clear everything either—s/he should be able to rely on fair use. Stand up for yourself as an author!
Feder: The publishers are taking advantage of non-prominent authors, shifting the costs of permissions to them.