BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

 

The case rises about when the Library sues Corel Corp, a company which makes photographic copies of famous artworks from museums, works which are already in public domain, sued Corel Corps for using digital images of these arts in their CD-Rom without compensation and sued the corporation for copyright infringement. The court was now faced with reinterpreting the loosely written “originality requirement” set during Burrow-Giles Lithographic Co v. Sarony in l884 and reshape the copyright clause of the constitution. Bridgeman points out in its argument the special techniques and extra effort and time which has put into reproducing the artworks as precisely and accurately as it can, but it further points to the fact while the copying of the artworks require a great deal of admirable skills, they are not of original merit and does not have artistic values that give them the right to copyright protection. Judge Kaplan puts it, “sweat of the brow” vs. “creative spark.” While the techniques and skills are valuable assets, they are not characteristics of creative of which, the case defines as “elements of originality… may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression…” These “elements” described in the case are not to be developed through training and effort, the way techniques require to make a perfect copy of a painting would, but requires a natural talent to capture creative moment on the two dimensional space. Because the works under question adamantly lack “distinguishable variation” and original input from the actual work that is being reproduced, no copyright protection can be granted.

Ultimately, Bridgeman v. Corel Corp ruled that two dimensional photographic reproductions of art already in the public domain were not copyrightable because the reproduction process of the art involved zero originality, which does not merit them the copyright production enjoyed by original works of photography.

This case provides a great support to the case because the case directly recognizes the lack of structure of the Sarony case and faces the difficulty of its broad definition by placing more aesthetic requirements for copyright protection. The case pinpoints to the public that originality that come from art is a matter of talent, not in the skills and efforts put into it. But the word talent is a very subjective and elusive term, as its meaning changes with societal perception and preferences. To base a legal clause on an intangible term fails to create a concrete standard for the society. Also, words used such as “distinguishable variation” and “creative spark” to describe works of original art create clear boundaries that we come to expect from the law. Observing from previous cases, it is apparent that no clear precedent was formed from one case to another, but the court created new aesthetic definitions of “original work of art” through case-by-case studies. Aesthetic decisions have created inconsistency and lack of predictability in copyright law.

 

"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits" Justice Holmes, Bleinstein v. Donaldson(1903) Despite Court's reservation about being judges of aesthetics values which grants 2D art an authorship, great display of judicial activism by courts have been demonstrated since Burrow-Giles v. Sarony(1884), where the court has reshaped copyright law through "aesthetic" determinations that newly define originality and authorship in two dimensional art. As a result, couple issues are at stake. 1) The change in the norm and societal definition of originality and authorship in 2D art. 2) Should such qualitative (subjective) analysis be used, or new quantative standards of determining originality is needed? 3) Lack of consistency and coherency in court's decision over time, and no predictability; does it promote progress? The fundamental question arises: should courts be making aesthetic decisions? I will be focusing on judicial activism displayed in cases about authorship of 2-D art determining what is copyrightable, most importantly in photography. Looking through landmark cases starting with Burrow-Giles v. Sarony(1884) to as recent as Bridgman Art Library v. Corel Corp(1999), I will argue that court's lack of "quantitative standards" in determining originality of each work created inconsistency and failed to create a societal norm of authorship and originality in 2D art realm. I will propose that legislation is needed in which the government clearly defines consistent, more quantative standards to judge "originality" of a two dimensional art to determine its qualifications for copyright privilege.