Are photographs of public domain artworks copyrightable?

Introduction

Recently, Pornhub, the adult video streaming platform removed their “Classic Nudes” series which included photographic representations of famous artworks. This was done in pursuance of complaints from museums like the Louvre and Uffizi.[i] Although a press release from Pornhub stated that the series was meant to stimulate the public to visit, explore and fall back in love with cultural institutions; the museums have alleged that using the photographs without their permission was illegal.[ii] But do museums have the right to restrict someone from using a photograph of an artwork that is displayed there? If the museum is the owner of the copyright subsisting in such artwork, then the answer is pretty straightforward, yes. But what happens after the expiry of copyright subsisting in such artwork? Does the museum continue to exercise the same rights? To answer this, it becomes pertinent to determine whether it is possible to have a copyright on photographs of public domain artworks.

What are Public Domain Artworks?

The term “public domain” refers to works of creative intellect that are not protected by intellectual property laws. This usually happens due to the expiration of the term of intellectual property. The term of a copyright is the lifetime of the creator and an additional fifty to seventy years depending on the domestic laws of each country, after which, the copyright is considered expired and open for public use. Specifically, public domain artworks refer to works of art such as paintings, drawings, or sculptures that are freely open for public use. (For this article, an artwork shall only refer to two-dimensional paintings or drawings.) Some examples of public domain artworks include the Mona Lisa by Leonardo Da Vinci, the Starry Night, and other artworks by Vincent Van Gogh, and Claude Monet among others. In addition to the natural process of expiration of copyright, an artwork may end up in the public domain in the following ways –

• Failure to follow renewal rules by the author/owner;

• Deliberately placing such work in the public domain;

• Non-protection of such work by copyright laws.

Judicial Interpretations of copyright protection to photographs of artwork

After the expiration of the copyright of the artworks, technically, it is open to be used by the public – even for commercial purposes. However, one side argues that even though the copyright on the artworks has expired, separate copyright exists in the photographs of such artworks. For a long time, the additional revenue streams for museums and art galleries were based on licensing high-resolution images of artworks for a certain fee, and anyone using these photographs without due permission could be sued.

In Bridgeman Art Library Ltd. v. Corel Corporation (“Bridgeman”)[iii], the claimant, Bridgeman, was a United Kingdom-based company that acquired photographs of public domain works and licensed the use of its high-resolution copies. The defendant, Corel, was a software company that sold CD-ROMs containing images of public domain paintings, many of which were also in Bridgeman’s library across the US, UK, and Canada. Therefore, Bridgeman brought a copyright infringement suit against Corel in New York. The Court applied the law as set out in the UK Copyright, Designs, and Patents Act 1988, which protected originality and denied copyright to the photographs of public domain artworks as they didn’t “originate with the author”.

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Test of Originality versus the doctrine of sweat of brow

The test of originality is considered to be a bedrock principle in copyright law. For copyright to subsist in a work, it must be original i.e. it must originate from the author and not be a mere copy of another person’s work[iv]. Additionally, it must also contain a minimal degree of creativity according to the principle of “modicum of creativity”.[v] Sufficient skill, judgment, and labor must be expended for a work to be considered original. On the other hand, the “sweat of brow” principle states that any person may gain copyright through simple diligence during the creation of work even in the absence of minimal creativity. However, the doctrine of sweat of brow has been rejected by the United States stating that the sine qua non for copyright is originality accompanied with a modicum of creativity.[vi] For more information on the test of originality, and sweat of brow principle, click here.

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The U.S District Court relied on Interlego AG v. Tyco Industries Inc.[vii], a UK precedent, and stated that skill, judgment, and labor invested in the process of copying cannot confer originality. On repeated requests, the District Court reopened the case and affirmed the earlier decision based on American Copyright Law. As this decision was passed by a district court, it only has persuasive value outside of such a district. However, the principles of law set out are in line with both – the UK and American law and therefore, the Bridgeman case is still relied upon.

More recently, a similar issue arose between the National Portrait Gallery of UK (“NPG”) and Wikimedia Commons where Derrick Coetzee, a student at the University of California, wrote a script that downloaded the images of more than 3000 photographs of public domain artworks from NPG and uploaded it on Wikimedia Commons, a public repository. NPG sent a demand letter to Derrick where they accused him of infringing their copyright. However, the matter never reached the courts. This might be a result of the decision passed in Bridgeman’s case.[viii]

In contrast to the above decision, Germany’s Federal Court of Justice or Bundesgerichtschof, in 2018,[ix] granted copyright to photographs of public domain artworks. The facts of the case involved the online publication of 37 photographs belonging to the Reiss-Engelhorn Museen (“REM”) who sought an injunction against the defendant. The defendant contested the injunction on the grounds that mere copies of another person’s work cannot confer originality and that these works were already in the public domain. However, the Court stated that taking a photograph of even a two-dimensional artwork requires artistic considerations to be made such as angle, lighting, distance, framing, etc. The Court stated that merely because the photograph aims to look like an exact copy of the artwork, the existence of a personal intellectual contribution cannot be denied. This means that even after the expiry of the copyright of an artwork, a museum or art gallery in Germany can continue to exploit it by claiming copyright on its photographs.

However, the decision passed by Germany’s Federal Court is not in line with the originality principle set by the European Court of Justice (“ECJ”). In Eva-Maria Painer v. Standard Verlags-GmbH[x], the ECJ held that copyright is liable to apply to a subject matter, such as a photograph, only when it is original in the sense that it is the author’s own intellectual creation. It will not apply to photographs where the author is unable to make free and creative choices. Additionally, in the case of Temple Island Collections Ltd. v. New English Tea Ltd. & Anr.[xi], the Court held that a photograph can be considered as an artistic work in terms of copyright law only if it has room for originality. Originality in a photograph can be determined based on the specific angles, light, exposure, creation of scene, or being in the right place at the right time. Only when these elements are born out of the creativity of the photographer, can a photograph be copyrightable.

Implications of Bridgeman & Creative Commons Zero Licensing

No similar litigation has been instituted in the U.S. in the aftermath of the Bridgeman case. Infact, even the NPG resorted to settling the dispute with Derrick Coetzee outside the courts. Until a superior court doesn’t pass a ruling on a similar issue, the decision passed in Bridgeman will stand. Most museums in the U.S. have now started attributing the Creative Commons Zero (“CC0”) license to photographs of public domain artworks.

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Creative Commons Zero versus Creative Commons Licensing

The CC0 license allows creators, artists, and owners of copyrighted material to make their work available to the public for free use by opting out of copyright protection to the fullest extent allowed by law. This is different from the Creative Commons license which allows creators, artists, and owners of works to choose the extent of rights to be made available to the public.

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Some well-known examples of museums in the U.S. granting the CC0 license include the Metropolitan Museum of Art, the Smithsonian American Art Museum, Yale Art Gallery, among others. Several museums even outside the U.S. – such as the Museum of New Zealand, the Rijks Museum, and some museums in Paris have started offering a collection of high-resolution photographs to the public for free use.[xii] However, many museums outside the U.S. continue using the Creative Commons license thereby restricting the use of its public domain images.

Conclusion

Ideally, while the photographs of public domain artwork must not enjoy copyright protection, numerous museums around the world continue to exercise economic rights over it. This brings us back to where we started – was Pornhub wrong in using photographs of public domain artworks without permission? Not really. Will museums continue to try and exercise rights over reproductions of artwork without any copyright? Yes. However, this can mostly be attributed to historical practice. The shift in approach to reproductions of work in the public domain has only just begun with people and courts asking the right questions. Until then, a lop-sided balance between the interests of museums and art galleries, and the interests of the people to use public domain pictures will continue.

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References: [i] Helen Stoilas, Pornhub removes videos and online tours based on works in Louvre, Uffizi and Prado collections, THE ART NEWSPAPER (Aug 13, 2021), https://www.theartnewspaper.com/news/pornhub-removes-videos-and-online-tours-based-on-works-in-louvre-uffizi-and-prado-collections. [ii] Not Safe For (Art) Work: Pornhub creates ‘Classic Nudes’ tours of museum collections, THE ART NEWSPAPER (Jul 14, 2021), https://www.theartnewspaper.com/blog/not-safe-for-art-work-pornhub-creates-classic-nudes-tours-of-museum-collections. [iii] Bridgeman Art Library Ltd. v. Corel Corporation, 36 F. Supp. 2d 191. [iv] University of London Press v. University Tutorial Press Ltd., (1916) 2 Ch. D. 601. [v] Feist Publications Inc. v. Rural Telephone Service Co. Inc., 499 US 340. [vi] Ibid. [vii] Interlogo AG v. Tyc Industreis Inc. & Ors. (Hong Kong), [1988] UKPC 3 (5 May 1988), RPC, 343. [viii] Grischka Petri, The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-Dimensional Works of Art, JOURNAL OF CONSERVATION AND MUSEUM STUDIES (2014), http://doi.org/10.5334/jcms.1021217. [ix] I ZR 104/17, Bundesgerichtshof. [x] Eva-Maria Painer v. Standard Verlags-GmbH & Ors., (C-145/10) [2011] E.C.D.R. 13. [xi] Temple Island Collections Ltd. v. New English Teas Ltd. & Anr., [2012] EWPCC 1. [xii]Kathryn Goldman, Museums that Give Away Open Access Images of Public Domain Work, CREATIVE LAW CENTER (Mar. 30th, 2021), https://creativelawcenter.com/museums-open-access-images/.