Rather like buses, after a long dearth two cases focusing on a copyright law chestnut have come along at once either side of the Atlantic, and both involve digital use of photographs.
Who: Antiquesportfolio.com v Rodney Fitch & Co and The Bridgeman Art Library Ltd v Corel Corp.
When: Spring and June 2000
Where: Chancery Division of the High Court. London and District Court for the Southern District of the State of New York
Rather like buses, after a long dearth two cases focusing on a copyright law chestnut have come along at once either side of the Atlantic, and both involve digital use of photographs. In the US case the defendant Corel Corporation sold a range of "clip art" CD’s which included photos of existing paintings. These photos, the UK-based claimant Bridgeman Art Library alleged, were taken from Bridgeman’s archive of transparencies of well known works of art on display in galleries worldwide. These were available on CD-ROM, but only reproducible under licence from Bridgeman, whose photographers had obtained permissions from museums and galleries and gone to some lengths in terms of camera positioning, lighting, type of film etc to produce top quality snaps of the works of art. In the UK case, the defendant was a website designer contracted to design a website which was to sell antiques on-line. The client discovered that the designer had included in the site tiny icons and banners using images of antiques which were copied from photographs in a well known antiques encyclopaedia.
The contract between the client and the designer said nothing about copyright , but the client sued for return of all monies paid to the designer on grounds of an alleged breach of an implied term in the contract obliging the designer to supply site which did not infringe third party copyright.
In both cases one of the defences run was that there could be no copyright in a photograph of an existing public domain work. This was on the ground that the photograph lacked the originality which UK and US law says is essential for copyright to arise.
In the US case the Court held that under US and UK law the photos had the status of mere photocopies and allowed the lack of originality defence. In the UK case Neuberger J (applying only UK law) took the opposite view and held that there was sufficient skill and care involved in taking the photos for them to pass the "originality" test.
On the contractual aspects of the case the judge delayed judgement until trial. This is reported under the "Contract" master index category in this Newsfeed Stop Press folder.
Why this matters:
Even before the Antiquesportfolio case, UK copyright pundits were casting serious doubt on the Bridgeman case, insofar as it purported to interpret UK law in this area. The Neuberger decision merely serves to intensify misgivings over the US judgment, which in any event is not binding authority here in the UK. When using photographs in the UK, therefore, it should always be remembered that there are (at least) two bundles of rights to consider. There are the potential rights in the subject matter of the photograph and, even if that is in the public domain because the copyright has time-expired, the possible rights in the photograph itself.