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Bridgeman Art Library v. Corel Corporation

Bridgeman Art Library v. Corel Corporation

36 F. Supp. 2d 191

United States District Court, Southern District of New York, 1999

Facts: Plaintiff Bridgeman Art Library is an English company with offices in New York. Its business is primarily concerned with acquiring rights to market reproductions of public domain works of art owned by museums and other collections. Bridgeman distributed its images as transparencies to clients through licensing arrangements. Defendant Corel Corporation's business centers in the creation and marketing of software products. Specifically at issue in this litigation is Corel's set of seven CD-ROM's entitled "Corel Professional Photos CD-ROM Masters I-VII" that contain seven hundred digital reproductions of well known paintings by famous European artists. Bridgeman claims to have exclusive rights in photographic transparencies of a substantial number of well known works that appear in museums throughout the world and also in Corel's CD-ROM product.

Procedural Posture: In 1998, applying United Kingdom law (but noting the same result would be reached under United States law), this Court granted Corel's motion for summary judgment dismissing Bridgeman's copyright infringement claim on the ground that the allegedly infringed works (color transparencies of paintings which themselves are in the public domain) were not original and therefore could not constitute copyrightable subject matter. Bridgeman then moved for reargument and reconsideration arguing that the Court erred on the issue of originality. After receipt of an unsolicited letter by Professor William Patry, author of a copyright treatise, which argued that this Court had erred in applying UK law, the Court granted leave for the submission of amicus briefs and invited parties to respond to Professor Patry's letter. Noting that plaintiff Bridgeman initially failed to competently address most of the issues raised prior to entry of final judgment, the Court agreed to address the issues on the merits because they are significant beyond the immediate interests of the parties. Thus, plaintiff's motion for reargument and reconsideration of the Court's order granting summary judgment dismissing the complaint is granted.

Issue: Whether color transparencies of paintings which themselves are in the public domain are sufficiently original to receive copyright protection

Held: No. Copyright protection is unavailable for photographs of existing two-dimensional articles (in this case works of art), each of which reproduces the article in the photographic medium as precisely as technology permits.

On reargument and reconsideration, defendant Corel's motion for summary judgment dismissing the complaint is granted.

Analysis and dicta: After a long discussion regarding choice of law, the Court concluded that United States Copyright Act applies to the case but noted that plaintiff's copyright claim would fail even if the governing law were that of the UK. Photographs are writings within the meaning of the Copyright Clause and may be sufficiently original stemming from the following factors: the pose, arrangement of accessories in the photo, lighting, angle, selection of film and camera, and the expression evoked by the photographer. A reproduction will be considered original only if it is a distinguishable variation and this requires something beyond technical skill. A mere change of medium does not amount to a distinguishable variation; thus, a change of medium, standing alone, cannot furnish the requisite amount of originality for copyright protection.

Furthermore, a photo will be denied copyright protection when it amounts to nothing more than slavish copying. Although such copying requires effort and technical skill (oftentimes what the law seeks to protect), copyright is not available when the point of the exercise was to reproduce the underlying works with absolute fidelity. A copy in a new medium is eligible for copyright protection only where the copier makes some identifiable, original contribution. Because plaintiff admittedly produced reproductions of public domain works of art in order to replicate the images as closely as possible, there is no originality and copyright is unavailable; the change of medium is immaterial.

Policy/future importance: If the courts did not require a genuine difference between the underlying work and the copy for which protection is sought, individuals would be able to monopolize public domain art works. Such protection would undermine the underlying interest of promoting the arts.

Remaining Question: Whether a change of medium outside of the photography context, for example from a sculpture to a watercolor painting, or a change in size, injects the requisite amount of creativity/originality so as to warrant eligibility for copyright protection

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