working with public domain images, part 2: derivatives


Last week we outlined the most clearly defined sources of public domain images—images that have never been or are no longer under copyright and are therefore available for anyone to use, without restriction. You may well wonder, though, why the reproductions you find (online and in printed materials) of those public domain images sometimes carry a copyright notice, and whether you would be infringing if you used those reproductions. In today’s post, we’ll take a closer look at this more complicated issue: using derivative copies of public domain works.

{A word from Betsy: In this post, Chuck goes into the details of a few court decisions and their implications, so it’s a little more law heavy than I normally like to get here on the F13 blog. I hope you’ll agree that it’s a very interesting topic and worth the deeper analysis!}

So what about the derivative copyright?
While it’s great to know that an image is in the public domain, it’s another issue whether you’ve got access to a copy you can use. This is both a technical and a legal question. By way of example, we’ll use a hypothetical painting you would find in a museum, but remember that this discussion applies equally to things like textile designs, photographs, and printed ephemera for which you can confidently ascertain that the original is in the public domain.

On the one hand, that photograph of a public domain painting you took while visiting a museum is yours and yours alone, but when you go to actually make use of that photograph for your own work it could well be flawed—too dark, too grainy, shot on an angle—to be useful for your purposes.  On the other hand, the digital image of the same work on the museum’s website looks pretty great. Well lighted. Crisp focus. Shot from straight on. It looks a lot more like the painting you remember. In fact, as you search for images on the Internet you’re very likely to find many high quality reproductions of the very works you’re confident are in the public domain. And very often, you’ll see that the image bears a copyright notice and is being offered under a license for a fee. What’s up with that?

Is it merely a copy?
This is where the “originality” requirement comes into play. A reproduction must add some new content to the underlying  work in order to be independently copyrightable. A “mere copy” of an artwork has only the copyright status of the original. It turns out that many of those online images may well be “mere copies.”

The key case on this issue—Bridgeman Art Library versus Corel Corporation—came out in 1998. Bridgeman, which bills itself as “The World’s leading Rights Managed supplier of Art, Culture and Historic images,” contracted with museums for access to great public domain works of art and created high-quality photographic duplicates of those works, which it then offered to license for commercial uses and for sale on CDs for noncommercial uses. Corel Corporation accessed the CDs through a third party and proceeded to offer many of the individual images for sale in their own art-based products. Bridgeman asserted that even though the underlying paintings were public domain, its photographs—taken at great expense and with fidelity to the original artwork in mind—were separately copyrightable derivative works. The court disagreed, finding that Bridgeman’s “exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original.” The copyright buzzword is that an exact copy is “slavish” to the original, meaning that it looks so much like the original that it lacks originality and gets no separate copyright protection.

Phone books, piggy banks and the public domain
The judge in Bridgeman v. Corel relied on two important higher court cases. The first one, Feist Publications, Inc. v. Rural Telephone Service Co., was a U.S. Supreme court decision finding that a telephone company’s white pages publication was not copyrightable. In Feist, both parties agreed that the compiled facts—the name, home town, and telephone number of telephone line owners—were not in themselves copyrightable. But they disagreed over how much “originality” was needed to make the specific compilation copyrightable. This case is important in part because it looked at the issue of the “sweat of the brow” versus newness or creativity. The telephone company had gone through the work of collecting and compiling the data (i.e, it had expended “sweat of the brow”) but its final product, an ordinary alphabetical compilation, just wasn’t original enough, sweat or no sweat, the court decided.

The second case the Bridgeman judge relied on was L. Batlin & Son v. Snyder. In that case a manufacturer claimed copyright protection for a plastic, reduced-scale piggy bank copy of a larger, metal version that was in the public domain. Despite the derivative’s change in materials and size from the original, the circuit court found the plastic replica to be a slavish copy. Relying on these cases, the judge in Bridgeman found that even though the Bridgeman Art Library had transferred the public domain image to a new medium (photography), and expended considerable technical skill and expertise in the making of its photos (i.e. sweat of the brow), the resulting faithful photographic derivatives lacked creativity and were instead slavish copies.

The Bridgeman decision has been around a long time and most commentators believe that its reasoning is solid (see for example this 2012 interview with University of Virginia law professor Christopher Sprigman). It’s even cited in the Compendium of U.S. Copyright Office Practices (at 313.4(A)) for the proposition that copyright protection is not given to “mere copies.” But the loser in that case, the Bridgeman Art Library, apparently chose to not appeal the trial court’s decision. As a result (and this is important!) the Bridgeman v. Corel decision is only “persuasive” rather than “binding” legal authority. Other courts don’t have to follow it.  

Putting the Bridgeman decision to the test
Since other courts don’t have to follow it, it’s still possible that a museum or other maker of digital photographic copies of public domain artworks could sue and win. So that leaves room for the creators of arguably “slavish” 2D images of public domain artworks to continue asserting a copyright interest in the photographic reproductions they offer to license. Case in point, Van Gogh’s “Starry Night” is in the public domain. The original painting is in the collection of the Museum of Modern Art in New York City. Go to the MoMA website and look up “Starry Night” and you’ll see information on how to license MoMA’s photograph of it. But if you go to Wikimedia you can find a downloadable image of the painting along with language echoing the Bridgeman decision: “The official position taken by the Wikimedia Foundation is that ‘faithful reproductions of two-dimensional public domain works of art are public domain.’"

To our knowledge neither MoMA nor any other maker of Starry Night “slavish” copies has sued Wikimedia for copyright infringement. And in the press it’s been said that in the wake of Bridgeman v. Corel the museums have stopped suing on unlicensed uses of their photographs of public domain paintings. But they could. And that’s enough to keep many people paying for licenses. It’s a strange situation. The museums don’t want to sue because they could end up with another Bridgeman-style decision from an even higher court that could become binding precedent for dozens of district courts. Such a decision would effectively call their bluff and make them look dishonest if they continued to seek licensing royalties. But if they don’t sue, then a good stream of uninformed or risk averse users will continue to pay for licenses to avoid the risk of being sued.

What does all this mean for you?
In effect, whether you choose to use this type of image or not boils down to how risk tolerant you are. Remember: Bridgeman only says that flat 2D duplicates of flat 2D public domain artworks aren’t creative enough. A 2D image of a public domain 3D sculpture might have enough creativity, due to artistic choices regarding angle, lighting, placement in the frame, etc., to be separately copyrightable. So your first step is to be sure that the image you’re interested in is truly in the public domain and second, if you’re keen on using a copy you’ve found, satisfy yourself it’s a “slavish” copy and not something that has enough “newness” to qualify it as a copyrightable derivative. (Remember that this cuts both ways: if your new artwork is based closely upon a public domain work but contains enough of your unique creative content or transformative expression, it may well be copyright protectable by you.)

For those who want to use public domain images but don’t want to mess with even the possibility of a 2D image maker asserting copyright, you can look for sources that are unlikely to assert unreasonable derivative copyright claims. For example, large institutional image holders like the Library of Congress, the National Gallery, the British Library, and Wikimedia Commons willingly supply both images and, frequently, enough factual information for you to be reasonably confident that the underlying artwork is out of copyright. Likewise, there are sites like The Graphics Fairy (provider of the wonderfully wacky image used in blog graphic today!) and the mom-and-pop image site, which provides unlimited access to thousands of great public domain illustrations and graphic designs for a small monthly fee. 

[4/12/17 edit: This just in! Pond5 is a stock photo site that has a great collection of vintage photos in the public domain. They also have a super helpful video explaining what the public domain is, and they explain a couple of instances where one needs to exercise caution in using public domain resources for profit. Check it out here!.]

In short, determining whether an image is in the public domain is a matter of applying rules to often imperfect information. Sometimes you just can’t be 100% sure there’s no risk of being called out by someone claiming a copyright interest. Always consider the source. At the end of the day, it’s up to you to decide how much risk you’re willing to take in using an image reproduction you’ve come across. We hope these guidelines will help in that process.

Blog break! We’re taking a couple weeks off from the blog. We'll be resting our noggins and giving our ideas some room to expand. Expect our next post the week of September 7th!

Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.