It has always been possible to copy a work of
art. For millennia, the right to produce and use images of the
works of others for religious, political, commercial, or decorative
purposes was rarely challenged. The advent of copyright
restrictions on images coincides with the invention of the
technologies that made faster, more economical reproduction of them
possible—the printing press and efficient papermaking—and with the
early capitalist transformation of European cities that spurred
those technologies. As soon as multiple printmaking techniques were
cost-effective, artists began to challenge unauthorized print
copies of their inventions on commercial grounds, and thus generate
case law that would lead to the codification of copyright in works
of art and images. Causes célèbres in the history of the
copyrighted work of art include Albrecht Dürer's partly successful
challenge to Marcantonio Raimondi's bootlegging of his prints,
Claude Lorrain's effort to protect his compositions against forgery
by recording them in drawings in a Liber Veritatis, Peter Paul
Rubens's elaborate privilege applications, and William Hogarth's
lobbying for the first English Copyright Act, passed by Parliament
in 1735. The current difficulties faced by scholars and their
publishers in obtaining—and paying for—copyright permissions stand
in this tradition of artists' assertions over the potential
commercial value of their creative endeavors.
The following discussion of the current state
of copyright practice is limited to copyright in works of visual
art and architecture and in images that reproduce them. In the United
States, copyright law protects makers of artistic works against the
unauthorized copying, that is, reproduction, of their works. It is
a form of intellectual property law in that copyright protects the
expression of an idea (visual or otherwise) rather than the idea
per se, and in that it is meant to safeguard the actual and
potential commercial value of an artistic work for its creator, for
a legally specified period. Ever since the adoption of the 1976
U.S. Copyright Act, which took effect in 1978, the law has tended
to strengthen copyright protection for the makers of works of art
and images and for their heirs, at the increasing expense of the
right of freedom of expression, which would seem to authorize
critical and expressive re-use and interpretation of creative
works. Under the 1976 Copyright Act, copyright extends from the
moment of the work's creation through the author's lifetime plus
fifty years. In 1998, the Sonny Bono Copyright Term Extension Act
increased that term by twenty years. The Digital Millennium Copyright Act, also passed in
1998, offers further protections of copyright holders in the
digital realm.
The 1976 and 1998 copyright acts yield a few
rules of thumb: any work of art made after 1978 is in copyright for
the life of the author plus seventy years; any work of art that was
made before 1978 and never published is copyrighted for the life of
the author plus seventy years; any work of art that was published
before 1923 is in the public domain; and many works published
between 1923 and 1978 remain in copyright today. When the copyright
owners of works are hard or impossible to identify and locate, as
is the case for the vast majority of works published before 1978,
they are referred to as "orphan works." The convolution of these
rules and terms, here presented in simplified form, is the result
of the continuing force of the central provisions of the Copyright
Act of 1909, which was not fully superseded by the later acts; the
1909 law defined copyright in a creative work from the moment of
its properly registered publication rather than creation.
The complexity of U.S. copyright law, and its
partial incommensurability with copyright law in other countries,
is especially onerous for scholars who publish images of twentieth-
and twenty-first-century art. Nevertheless, a gradually expanding
definition in practice (rather than by law) of the "artistic work"
that is protected by copyright has created analogous difficulties
for scholars who study works of art that have long been in the
public domain. Authorized photographers of those works, or the
owners for whom they make them, usually claim copyright in those
reproductions, with the same temporal extensions granted artists
and their heirs.
Thus, most museums now explicitly or
implicitly claim copyright over images of all works in their
collection, whether in the public domain or not. The same copyright
ownership is implied by for-profit collections of images of public
domain works, in digital as well as traditional photographic forms.
Such collections include stock image providers geared exclusively
to commercial applications (such as
Corbis, a company founded in
1989 by Bill Gates, which describes itself as a "visual solutions
provider" of all manner of images, not limited to works of art) and
image collections focused on reproductions of works of art for
commercial as well as scholarly applications (such as the
Bridgeman
Art Library and Art Resource, which present themselves as
"archives" or "libraries" of art images, many of which are licensed
to these providers by major museums as well as private collectors).
For museums and other owners of art in the public domain, granting
non-exclusive licenses to for-profit art image providers extends
the commercial value of works of art in their collections.
Our study found that the efforts of owners of
works of art in the public domain to claim copyright over plainly
reproductive images of them is meeting with growing criticism and
with legal and practical attempts at remediation. Such critiques
usually argue for a distinction between "artistic" or obviously
"interpretative" images of works of art and architecture on the one
hand, and, on the other, "slavish copies" or "exact records" of
such works.
At first sight, this distinction appears
problematic on philosophical as well as pragmatic grounds. It seems easier to make for
works of architecture, sculpture, performance art, and
installations than for paintings, drawings, and prints, because
viewing angles, lighting, and the presence of figures matter that
much more in images of spatially and temporally extensive works. Yet as superior photographers of "flat"
works will claim, translating an oil painting—especially one with
fine-grained brushwork or heavy impasto, subtle colorism or complex
perspective—into an image that will evoke its aesthetic effects in
print or on screen is a creative endeavor in its own right, whose
commercial value should be protected by copyright. Many
contemporary artists would use different arguments to challenge the
claim that imaginative yet nearly exact reproductions of flat
images cannot be copyrighted. Various forms of appropriation of
"flat" images, some of which may appear "exact," "slavish," and
"unoriginal," have been central to art production for several
decades now, and their philosophical status has been the subject of
sophisticated art criticism. The argument that reproductive
images of "flat" works lack the modicum of creativity required for
copyright production may be appealing to scholars of paintings,
drawings, prints, and photographs in the public domain, but it
seems difficult to make and harder to adjudicate.
Nevertheless, it was precisely on distinctions
between creative and slavish reproductions that the U.S. District
Court judge in the 1998 case Bridgeman Art Library v. Corel
Corporation rejected the plaintiff's claim that Corel had infringed
its copyright in color images of paintings in the public domain.
Corel had digitized several transparencies made and owned by
Bridgeman of the works in question. The judge ruled: "There is
little doubt that many photographs, probably the overwhelming
majority, reflect at least the modest amount of originality
required for copyright protection. . .. But 'slavish copying,'
although doubtless requiring technical skill and effort, does not
qualify." Significantly, the judge ruled that the technical change
in medium, from oil to transparency, did not constitute such
originality. The
section below on Responses to Copyright, Access, and Cost
Challenges outlines the positive implications of the Bridgeman
decision for art history publications.
