Copyright of Coin Photographs
by Andrew McIntyre
The
purpose of copyright in the United States
it to give legal protection to works that
are original and creative. Photographs
of coins, both modern and ancient, were
traditionally published in sale catalogs
and in numismatic books since the late
19th century. The advent of the computer
and the internet at the end of the 20th
century has created a new medium to display
photographs both of coins and classic works
of art. As both a coin dealer and person
engaged in coin studies, this issue has
attracted my attention of late. Google,
the internet search engine, had scanned
my online store, www.coinsoftime.com, for
its portal “Google Images”. It used my
coin images in its image indexing pages.
I had no objection as Google listed my
website as the source. Coin images and
their copyright is often discussed and
widely misunderstood among the coin community. Photographs of coins are taken by dealers
and auction houses to display their inventory
and by collectors and numismatic institutions
to publish their collections. Many of these
entities believe that the coin photograph
is protected by copyright and, therefore,
cannot be used or reproduced by a third
party without their permission. This assumption
is based upon two pillars:
1. The sheer act of taking the image of the coin makes the image private property.
2. The photograph required technical skill and, therefore, is both creative
and original and worthy of protection.
This issue came into play in 2005 when a coin dealer in the USA claimed copyright
over coin images and refused to grant permission for their use in an upcoming
numismatic publication. In order to clarify its legal position that publisher
consulted top copyright lawyers in the USA on the matter. The legal consensus
among the copyright lawyers was that no copyright existed for coin images
just as no copyright exists for photographs of paintings in the public domain.
It is mostly likely that the copyright lawyers were aware of a pivotal legal
case in the United States from 1999, THE BRIDGEMAN ART LIBRARY, LTD., v COREL
CORPORATION 1. In order to understand why copyright for coin images does
not exist, it is necessary to break apart the different components that go
into making such a photograph and review the legal case itself. The coin
itself must
be in the public domain and not subject to copyright. If I minted a unique
design for a coin last year then the coin would not be in the public domain.
The design of the coin would be subject to copyright and it could not be
published without my permission2 . The issue here is not the copyright of
the coin photograph, but the copyright of the coin itself which presents
the obstacle.
If a photograph is taken of a 2,000 year old coin, the coin itself is not subject
to copyright protection and, therefore, the coin is in the public domain.
The same principal would apply to a painting. Most people would agree with
this part. The next element is the physical reproduction of an image of the
coin. Again, we are dealing only with a coin in the public domain. Most legal
experts have long agreed that a photocopy or a scan would not be subject
to copyright as it is not considered original or creative. Therefore, the
first pillar that private property or copyright exists by the sheer act of
creating an image is not true.The second pillar that is cited as a foundation
for copyright of a coin photograph is that it can require some technical
skill, such as proper lighting, resolution, and exposure, and consequently
must be original and creative
and worthy of copyright protection. However, when closely examined, this
argument falls apart. The purpose of taking the photograph is to give a faithful
rendering of the actual coin, not to create a work of art. The photographer
is trying to give the potential buyer or reader a true sense of what the
coin would look like if they had the coin in their own hands. Such a reproduction
is not considered original or creative for copyright purposes in the USA.
If a photographer created a montage of coin photographs or altered the image
from what can be seen on the actual coin itself then a case could be argued
that an original work was created.
Let us review the legal case and how these issues were addressed in 1998-1999.
The circumstances were as follows. Corel Corporation developed an educational
CD using photographs of art works that the Bridgeman Art Library of the United
Kingdom had created. The Bridgeman Library sued for copyright infringement
and requested that UK law be applied in a US court. In a summary judgment
in November 1998 3, the US court dismissed the suit indicating the photographs
were not of original character to deserve copyright protection. Bridgeman
refiled the case will additional arguments to the annoyance of Judge Kaplan.
The judge however felt the issue was important and reviewed the case again.
Bridgeman again requested that UK law be used. They argued the original summary
judgment was as a result of a flawed conclusion of UK law as the Graves Case of
1869 was not considered. A Professor Paltry filed an amicus brief stating
only US Law could be used to consider the case 4. Bridgeman countered UK
law was applicable as the United States had agreed to an international treaty
known as the Berne Convention in 1989 which obligated the USA to respect
other national copyright laws including UK copyright laws. Bridgeman wanted
UK law applied as it appeared that Britain did not require originality or
creativity as the source of copyright unlike the USA.
Judge Kaplan cited that the Berne Convention did not require UK law be applied
but only that foreign nationals be granted copyright protection afforded
to the national population of jurisdiction trying the case. Judge Kaplan
decided the case the second time based on US law. Judge Kaplan again ruled
against Bridgeman and cited various US law cases and the Copyright Law of
1909 as reasons to rule against copyright protection in this case. The following
are extracts from the final summary judgment and outline the facts why the
judge determined copyright did not exist.
“ There is little doubt that many photographs, probably the overwhelming majority,
reflect at least the modest amount of originality required for copyright
protection. “Elements of originality . . . may include posing the subjects,
lighting, angle, selection of film and camera, evoking the desired expression,
and almost any other variant involved.” n39 [*197] But "slavish
copying," although doubtless requiring technical skill and effort, does not qualify. n40
As the Supreme Court indicated in Feist, "sweat of the brow" alone is not the "creative spark" which is the sine qua non of originality. n41 It therefore is not entirely surprising
that an attorney for the Museum of Modern Art, an entity with interests comparable
to plaintiff's and its clients, not long ago presented a paper acknowledging
that a photograph of a two- dimensional public domain work of art "might not have enough originality to be eligible for its own copyright." n42. The allegedly greater skill required to make an exact photographic, as
opposed to Xerographic or comparable, copy is immaterial. As the Privy Council
wrote in Interlego AG v. Tyco Industries, Inc., n48 "skill, labor or judgment merely in the process of copying cannot confer originality
. . . ." n49 The point is [*199] exactly the same as the unprotectibility under U.S.
law of a "slavish copy."
Here, [**29] as the Court noted in its earlier opinion, "it
is uncontested that Bridgeman's images are substantially exact reproductions
of public domain works, albeit in a different medium." n54 There has been no suggestion that they vary significantly from the underlying
works. In consequence, the change of medium is immaterial
Lady
Bridgeman, plaintiff's principal, testified
that the goal of the transparencies is
to be as true to the original work as possible.
(Bridgeman Dep. 15) The color bars (referred
to in the prior opinion) are employed to
make sure that "the transparency is a genuine reflection of the colors" of the original works of art. (Eichel Dep. 29) Plaintiff has argued "that in creating the transparencies . . . , Bridgeman strives to make the transparency
look as identical to the underlying work
of art as possible . . ." (Pl. Mem. in Opp. to Summary Judgment 4)”
Many museums reviewed their policies especially those in Britain after the
US ruling. A group called "Museums
Copyright Group " of the United Kingdom commissioned a report on behalf of British museums to
look into the consequenes of the US court decision. They determined the UK
copyright law was still intact but it interesting to note the later part
of the following comment from the report, "Bridgeman -v- Corel is not binding in the UK and is of doubtful authority even
in the USA" 5. One must contrast this comment with the comment from the following source" “Speaking about this case, an attorney for the American Association of Museums
said: "Just about every museum attorney looking at the case objectively thinks it came
out the correct way according to U.S. copyright law -- that's why no museum
had ever brought such a suit.... It would have been unwise for AAM to be
on Bridgeman's side in this case because it would have undermined our credibility”
6 . This clearly shows that not only before the decision but even after the
decision the British Museums did not grasp the fundemantal difference between
British copyright law and US copyright law, namely the requirment of originality
and creativity. This ruling in 1999 in the Southern District of New York
is not established law outside the district. However, the precedent of the
case and the logic applied undoubtedly is sound enough that no one has dared
challenge it any further in the USA. Museums have restricted access to images
and works of art but will often supply them when they receive a signed contract thereby protecting
their reproduction rights. Therefore the museums are seeking protection under
contract law not and not copyright law. Some people attempted to believe
the US ruling applied only to two dimensional art, which is a misreading
of the case. The reference to two demensional art (as seen above) related
to the judge quoting a paper published by a museum attorney in which the
attorney doubted copyright existed in this area. The basic tenet is that
if a photographer is attempting to create an exact photographic copy of a
work of art or coin that is in the public domain then it is not covered by
copyright in the USA.
1.
The Bridgeman Art Library, Ltd. v. Corel36
F. Supp. 2d 191; 1999 U.S. Dist. LEXIS
1731; 50 U.S.P.Q.2D (BNA) 1110.
2. This could be published under the Fair Use if related to a critique or a
review.
3. Judgment for defendants, 25 F. Supp. 2d 421 (S.D.N.Y. 1998
4. “Professor Patry argues principally that there can be no choice of law issue
with respect to copyrightability because the Copyright Clause of the Constitution
n7 permits Congress to enact legislation protecting only original works of
authorship. In consequence, he contends, only original works, with originality
determined in accordance with the meaning of the Copyright Clause, are susceptible
of protection in United States courts”
5. Quote from http://www.museumscopyright.org.uk/bridge.htm
6. Quote from http://www.funnystrange.com/copyright/bridgeman.htm
Sources
•
www.constitution.org .
• http://englishhistory.net/tudor/art.html,
• www.law.cornell.edu
• http://en.wikipedia.org
• http://www.museumscopyright.org.uk/bridge.htm
updated 4/9/2009
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Note : The author of the above article is not a lawyer and this article should
not be construed as legal advice. The photograph of a coin of the Emperor Trajan above
was
taken by the author. No copyright is attached to this coin image as it is a true representation of the coin itself and devoid of creative input from the author per US copyright law.
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