Keywords: Bridgeman Art Library v. Corel Corp. Photographs Of Public Domain Art Must Have Substantial Elements Of Originality In Order To Qualify For Copyright Protection

Copyright Law Does Not Cover Photographs Which Merely Copy Visual Works In The Public Domain
So if someone makes a new digital photo of an earlier visual work which has entered the Public Domain, and the new photo simply copies the earlier work, then the new photo has no more right to Copyright protection than the earlier work now has, which is, none.

Some publishers falsely claim ownership of Public Domain photographs which really belong to all people. They want you to think these images belong to them, not to you.

These conclusions are based on the applicable Laws and Court Decisions, as shown below. - Rev. Bill McGinnis

The applicable Federal Court decision is BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), as linked below and shown later below. http://www.nysd.uscourts.gov/courtweb/Pdf/D02NYSC/99-01031.PDF and also at http://www.patriot.net/users/bmcgin/BridgemanArtLibrary-99-01031.pdf

Also see the summary at http://en.wikipedia.org/wiki/Bridgeman_Art_Library_Ltd._v._Corel_Corporation, which says . . .

"Photographic reproductions of visual works in the public domain were not copyrightable because the reproductions involved no originality. Upon reconsideration and reargument, judgment was again entered for defendants."

The Legal Reasoning - Copyright protection is provided for "original works of authorship fixed in any tangible medium of expression," including photographs and other graphic images. (United States Code, Title 17, Section 102) But we note that a work must be an "original work of authorship" in order for the Copyright Law to apply. Works containing little or no originality are not entitled to copyright protection. The person who paints an original painting or takes an original photograph is thereby creating "an original work of authorship," and this work is entitled to copyright protection. A photographic copy of such an original work, done with permission of the copyright owner, would be considered a "derivative work;" (Title 17, Section 101) and its entitlement to copyright protection flows from the entitlement of the original work which it copies, plus any additional originality embodied in the photographic copy itself. But if the original work is in the Public Domain, the photographic copy of it has no entitlement for protection flowing from the original, because the original itself has none, being in the Public Domain. Only if the photographic copy has some significant elements of originality in itself does it become entitled to copyright protection in its own right. Thus a mere "slavish copy," - a copy which simply reproduces the Public-Domain original accurately - is not elibigible for copyright protection. And it, too, becomes part of the Public Domain, having no significant elements of originality in itself.

Be aware that the copyright owners of many newspapers, magazines, websites, books, and other media do frequently post copyright notices which seem to be claiming copyright on the entire publication and everything in it. Many casual users are thereby deterred from exercising their legal rights to use whatever Public Domain material may be contained within, unidentified as such. I have previously spoken against this deceptive and possibly fraudulent practice, particularly in my article here: http://www.loveallpeople.org/falseandfraudulentclaimsofcopyright.html

The Copyright Law specifically covers these cases in Title 17, Section 103(b), where it says, "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material."

So do not be afraid to jump in and freely use whatever Public Domain material you may find, wherever you may find it. This includes everything published in the United States before 1923, plus much more. And this specifically includes all "slavish-copy" photographs - regardless of when they were made - of art (or other photographs) which are now in the Public Domain. - (by Rev. Bill McGinnis)

TEXT OF THE APPLICABLE FEDERAL COURT DECISION

BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 
1999) 
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Lewis A. Kaplan, United States District Judge. 

[1] On November 13, 1998, this Court granted defendant's motion for 
summary judgment dismissing plaintiff's copyright infringement claim on 
the alternative grounds that the allegedly infringed works -- color 
transparencies of paintings which themselves are in the public domain -- 
were not original and therefore not permissible subjects of valid 
copyright and, in any case, were not infringed. [n1] It applied United 
Kingdom law in determining whether plaintiff's transparencies were 
copyrightable. [n2] The Court noted, however, that it would have reached 
the same result under United States law. [n3] 
[2] Following the entry of final judgment, the Court was bombarded with 
additional submissions. On November 23, 1998, plaintiff moved for 
reargument and reconsideration, arguing that the Court erred on the 
issue of originality. It asserted that the Court had ignored the 
Register of Copyright's issuance of a certificate of registration for 
one of plaintiff's transparencies, which it takes as establishing 
copyrightability, and that the Court had misconstrued British copyright 
law in that it failed to follow Graves' Case, [n4] which was decided in 
the Court of Queens Bench in 1869. [n5] At about the same time, the 
Court received an unsolicited letter from Professor William Patry, 
author of a copyright law treatise, which argued that the Court erred in 
applying the law of the United Kingdom to the issue of copyrightability. 
Plaintiff then moved for an order permitting the filing of an amicus 
brief by one of its associates, The Wallace Collection, to address the 
United Kingdom law issue. The Court granted leave for the submission of 
the amicus brief and invited the parties to respond to Professor Patry's 
letter. The matter now is ripe for decision. 
[3] At the outset, it is worth noting that the post-judgment flurry was 
occasioned chiefly by the fact that the plaintiff failed competently to 
address most of the issues raised by this interesting case prior to the 
entry of final judgment. In particular, while plaintiff urged the 
application of U.K. law, it made no serious effort to address the choice 
of law issue and no effort at all (apart from citing the British 
copyright act) to bring pertinent U.K. authority to the Court's 
attention before plaintiff lost the case. Indeed, it did not even cite 
Graves' Case, the supposedly controlling authority that the Court is 
said to have overlooked. [n6] 
[4] Everything plaintiff has submitted on this motion should have been 
before the Court earlier, which is more than sufficient reason to deny 
its motion as an unwarranted imposition on the Court and, indeed, its 
adversary. The issues, however, are significant beyond the immediate 
interests of the parties. Accordingly, the Court will address them on 
the merits. 
Choice of Law 
[5] 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. 
[6] Of course, the ability of Congress to extend the protection of 
copyright is limited by the Copyright Clause. Nevertheless, the 
constitutional issue is not as straightforward as Professor Patry 
suggests. Bridgeman claims that the infringed works are protected by 
United Kingdom copyrights and that the United States, by acceding to the 
Convention for the Protection of Literary and Artistic Works, popularly 
known as the Berne Convention, [n8] and the Universal Copyright 
Convention [n9] and by enacting the Berne Convention Implementation Act 
of 1988 (the "BCIA"), [n10] agreed to give effect to its United Kingdom 
copyrights. 
[7] The fact that plaintiff's rights allegedly derive from its claimed 
British copyrights arguably is material. Granting Professor Patry's 
point that Congress, in light of the originality requirement of the 
Copyright Clause, in ordinary circumstances may not extend copyright 
protection to works that are not original, the questions remain whether 
(1) the United States constitutionally may obligate itself by treaty to 
permit enforcement of a foreign copyright where that copyright 
originates under the law of a signatory nation which does not limit 
copyright protection to works that are original in the sense required by 
the United States Constitution and, if so, (2) the United States in fact 
has done so. Thus, Professor Patry's contention that the United States 
may not apply foreign law less restrictive than its own with respect to 
originality may be too narrow because it rests exclusively on the 
Copyright Clause. The legal effect and constitutionality of treaties 
also is implicated. 
[8] Article II, Section 2, of the Constitution provides that the 
President "shall have Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided two thirds of the Senators present 
concur." Treaties, by virtue of the Supremacy Clause, join the 
Constitution and federal statutes as "supreme law of the land." [n11] As 
the Supreme Court wrote in Geofroy v. Riggs: [n12]
"The treaty power, as expressed in the Constitution, is in terms 
unlimited except by those restraints which are found in that instrument 
against the action of the government . . ., and those arising from the 
nature of the government itself and the States. It would not be 
contended that it extends so far as to authorize what the Constitution 
forbids, or a change in the character of the government or in that of 
one of the States, or a cession of any portion of the territory of the 
latter, without its consent . . . But with these exceptions, it is not 
perceived that there is any limit to the questions which can be adjusted 
touching any matter which is properly the subject of negotiation with a 
foreign country." [n13]
[9] And while it now is clear that the treaty power is "subject to the 
constitutional limitations that apply to all exercises of federal power, 
principally the prohibitions of the Bill of Rights," [n14] the treaty 
power retains considerable scope. 
[10] The Copyright Clause and the Copyright Act both recognize that the 
United States has an important interest in protecting the intellectual 
property of its citizens and of those whose creative efforts enrich our 
lives. In this increasingly interconnected world, securing appropriate 
protection abroad also is important. Hence, it cannot seriously be 
denied that international copyright protection is "properly the subject 
of negotiation with" foreign countries. 
[11] Decades ago, the Supreme Court held in Missouri v. Holland [n15] 
that Congress could enact legislation necessary and proper to the 
implementation of a treaty which, absent the treaty, would have been 
beyond its powers. Although the case arose in a different context, [n16] 
it suggests that the Conventions, if their purported effect actually is 
to permit enforcement in the United States of foreign copyrights which 
do not meet U.S. standards of originality -- in other words, if they 
require enforcement here of any copyright valid under the law of the 
signatory nation in which copyright attached, even if that copyright 
does not meet U.S. standards of validity -- would not be obviously 
invalid. 
[12] In view of these considerations, the proposition advanced by 
Professor Patry -- that the Copyright Clause forecloses any choice of 
law issue with respect to the validity of a foreign Berne Convention 
work, is not free from doubt. It is necessary to decide that question, 
however, only if the Conventions require application of foreign law in 
determining the existence of copyright and, if so, whether there is any 
true conflict of law in this case on that point. 
[13] In most circumstances, choice of law issues do not arise under the 
Berne and Universal Copyright Conventions. Each adopts a rule of 
national treatment. [n17] Article 5 of the Berne Convention, for 
example, provides that "authors shall enjoy, in respect of works for 
which they are protected under this Convention, in countries of the 
Union other than the country of origin, the rights which their 
respective laws do now or may hereafter grant to their nationals, as 
well as the rights specially granted by this convention" and that "the 
extent of protection, as well as the means of redress afforded to the 
author to protect his rights, shall be governed exclusively by the laws 
of the country where protection is claimed." [n18] Hence, the 
Conventions make clear that the holder of, for example, a British 
copyright who sues for infringement in a United States court is entitled 
to the same remedies as holders of United States copyrights and, as this 
Court previously held, to the determination of infringement under the 
same rule of law. 
[14] While the nature of the protection accorded to foreign copyrights 
in signatory countries thus is spelled out in the Conventions, the 
position of the subject matter of copyright thereunder is less certain. 
Do the Conventions purport to require signatory nations to extend 
national treatment with respect to such enforcement-related subjects as 
remedies for infringement only where the copyright for which protection 
is sought would be valid under the law of the nation in which 
enforcement is sought? Or do they purport to require also that a 
signatory nation in which enforcement is sought enforce a foreign 
copyright even if that copyright would not be valid under its own law? 
[n19] But there is an even more fundamental issue, viz. whether United 
States courts may give effect to any provisions of the Conventions which 
might require or suggest that the existence of copyright be determined 
under the law of another nation. 
[15] Although the Supreme Court has not yet decided the point, it seems 
quite clear at this point that the Berne Convention is not 
self-executing. [n20] Section 3(a) of the BCIA [n21] confirms this view, 
stating that: 
"The provisions of the Berne Convention -- 
"(1) shall be given effect under title 17, as amended by this Act, and 
any other relevant provision of Federal or State law, including the 
common law, and 
"(2) shall not be enforceable in any action brought pursuant to the 
provisions of the Berne Convention itself."
[16] Section 4(c), [n22] now codified at 17 U.S.C. § 104(c), states in 
relevant part that "no right or interest in a work eligible for 
protection under this title may be claimed by virtue of, or in reliance 
upon, the provisions of the Berne Convention or the adherence of the 
United States thereto." Thus, while the Copyright Act, as amended by the 
BCIA, extends certain protection to the holders of copyright in Berne 
Convention works as there defined, the Copyright Act is the exclusive 
source of that protection. 
[17] The statutory basis of the protection of published Berne Convention 
works such as the photographs here at issue is Section 104(b), which 
states in relevant part that: 
  "The works specified by sections 102 and 103, when published, are 
subject to protection under this title if -- 
* * * 
"(4) the work is a Berne Convention work . . ." [n23]
[18] Section 102(a) limits copyright protection in relevant part to 
"original works of authorship . . . ." [n24] Accordingly, there is no 
need to decide whether the Berne Convention adopts any rule regarding 
the law governing copyrightability or whether the treaty power 
constitutionally might be used to extend copyright protection to foreign 
works which are not "original" within the meaning of the Copyright 
Clause. Congress has made it quite clear that the United States' 
adherence to the Berne Convention has no such effect in the courts of 
this country. And while there is no comparable legislation with respect 
to the Universal Copyright Convention, [n25] the question whether that 
treaty is self-executing is of no real significance here because the 
substantive provisions of the UCC are "of very limited practical import 
. . ." [n26] 
Originality and Copyrightability 
United States Law 
[19] The Court's prior opinion indicated that plaintiff's exact 
photographic copies of public domain works of art would not be 
copyrightable under United States law because they are not original. 
[n27] In view of the Court's conclusion here that U.S. law governs on 
this issue, it is appropriate to give a somewhat fuller statement of the 
Court's reasoning. 
[20] In Burrow-Giles Lithographic Co v. Sarony, [n28] the Supreme Court 
held that photographs are "writings" within the meaning of the Copyright 
Clause and that the particular portrait at issue in that case was 
sufficiently original -- by virtue of its pose, arrangement of 
accessories in the photograph, and lighting and the expression the 
photographer evoked -- to be subject to copyright. The Court, however, 
declined to decide whether "the ordinary production of a photograph" 
invariably satisfies the originality requirement. While Judge Learned 
Hand later suggested that the 1909 Copyright Act protected photographs 
independent of their originality, [n29] his view ultimately was rejected 
by the Supreme Court. [n30] Nevertheless, there is broad scope for 
copyright in photographs because "a very modest expression of 
personality will constitute sufficient originality." [n31] 
  
[21] As the Nimmers have written, there "appear to be at least two 
situations in which a photograph should be denied copyright for lack of 
originality," one of which is directly relevant here: "where a 
photograph of a photograph or other printed matter is made that amounts 
to nothing more than slavish copying." [n32] The authors thus conclude 
that a slavish photographic copy of a painting would lack originality, 
although they suggest the possibility that protection in such a case 
might be claimed as a "reproduction of a work of art." [n33] But they 
immediately go on to point out that this suggestion is at odds with the 
Second Circuit's in banc decision in L. Batlin & Son, Inc. v. Snyder. 
[n34] 
[22] Batlin involved the defendants' claim to copyright in a plastic 
reproduction, with minor variations, of a mechanical cast-iron coin bank 
that had been sold in the United States for many years and that had 
passed into the public domain. The Court of Appeals affirmed a district 
court order compelling the defendants to cancel a recordation of 
copyright in the plastic reproduction on the ground that the 
reproduction was not "original" within the meaning of the 1909 Copyright 
Act, holding that the requirement of originality applies to 
reproductions of works of art. [n35] Only "a distinguishable variation" 
-- something beyond technical skill -- will render the reproduction 
original. [n36] In consequence: 
"Absent a genuine difference between the underlying work of art and the 
copy of it for which protection is sought, the public interest in 
promoting progress in the arts -- indeed, the constitutional demand 
[citation omitted] -- could hardly be served. To extend copyrightability 
to minuscule variations would simply put a weapon for harassment in the 
hands of mischievous copiers intent on appropriating and monopolizing 
public domain work. Even in Mazer v. Stein, [347 U.S. 201, 98 L. Ed. 
630, 74 S. Ct. 460 (1954)], which held that the statutory terms 'works 
of art' and 'reproduction of works of art' . . . permit copyright of 
quite ordinary mass-produced items, the Court expressly held that the 
objects to be copyrightable, 'must be original, that is, the author's 
tangible expression of his ideas. 347 U.S. at 214, 74 S. Ct. 468, 98 L. 
Ed. at 640. No such originality, no such expression, no such ideas here 
appear." [n37]
[23] The requisite "distinguishable variation," moreover, is not 
supplied by a change of medium, as "production of a work of art in a 
different medium cannot by itself constitute the originality required 
for copyright protection." [n38] 
[24] 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] 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] 
  
[25] In this case, plaintiff by its own admission has labored to create 
"slavish copies" of public domain works of art. While it may be assumed 
that this required both skill and effort, there was no spark of 
originality -- indeed, the point of the exercise was to reproduce the 
underlying works with absolute fidelity. Copyright is not available in 
these circumstances. 
United Kingdom Law 
[26] While the Court's conclusion as to the law governing 
copyrightability renders the point moot, the Court is persuaded that 
plaintiff's copyright claim would fail even if the governing law were 
that of the United Kingdom. 
[27] Plaintiff's attack on the Court's previous conclusion that its 
color transparencies are not original and therefore not copyrightable 
under British law depends primarily on its claim that the Court failed 
to apply Graves' Case, a nisi prius decision and the supposedly 
controlling authority that plaintiff did not even cite in its opposition 
to defendant's motion for summary judgment. 
[28] Graves' Case in relevant part involved an application to cancel 
entries on the no longer extant Register of Proprietors of Copyright in 
Paintings, Drawings and Photographs for three photographs of engravings. 
[n43] In rejecting the contention that the photographs were not 
copyrightable because they were copies of the engravings, Justice 
Blackburn wrote: 
"The distinction between an original painting and its copy is well 
understood, but it is difficult to say what can be meant by an original 
photograph. All photographs are copies of some object, such as a 
painting or statue. And it seems to me that a photograph taken from a 
picture is an original photograph, in so far that to copy it is an 
infringement of the statute." [n44]
[29] Plaintiff and the amicus therefore argue that plaintiff's 
photographs of public domain paintings are copyrightable under British 
law. But they overlook the antiquity of Graves' Case and the subsequent 
development of the law of originality in the United Kingdom. 
  
[30] Laddie, a modern British copyright treatise the author of which now 
is a distinguished British judge, discusses the issue at Bar in a 
helpful manner: 
"It is obvious that although a man may get a copyright by taking a 
photograph of some well-known object like Westminster Abbey, he does not 
get a monopoly in representing Westminister Abbey as such, any more than 
an artist would who painted or drew that building. What, then, is the 
scope of photographic copyright? As always with artistic works, this 
depends on what makes his photograph original. Under the 1988 Act the 
author is the person who made the original contribution and it will be 
evident that this person need not be he who pressed the trigger, who 
might be a mere assistant. Originality presupposes the exercise of 
substantial independent skill, labour, judgment and so forth. For this 
reason it is submitted that a person who makes a photograph merely by 
placing a drawing or painting on the glass of a photocopying machine and 
pressing the button gets no copyright at all; but he might get a 
copyright if he employed skill and labour in assembling the thing to be 
photocopied, as where he made a montage. It will be evident that in 
photography there is room for originality in three respects. First, 
there may be originality which does not depend on creation of the scene 
or object to be photographed or anything remarkable about its capture, 
and which resides in such specialties as angle of shot, light and shade, 
exposure, effects achieved by means of filters, developing techniques 
etc: in such manner does one photograph of Westminster Abbey differ from 
another, at least potentially. Secondly, there may be creation of the 
scene or subject to be photographed. We have already mentioned 
photo-montage, but a more common instance would be arrangement or posing 
of a group . . . Thirdly, a person may create a worthwhile photograph by 
being at the right place at the right time. Here his merit consists of 
capturing and recording a scene unlikely to recur, eg a battle between 
an elephant and a tiger . . ." [n45]
[31] Moreover, the authors go on to question the continued authority of 
Graves' Case under just this analysis: 
"It is submitted that Graves' Case (1869) LR 4 QB 715 (photograph of an 
engraving), a case under the Fine Arts Copyright Act 1862, does not 
decide the contrary, since there may have been special skill or labour 
in setting up the equipment to get a good photograph, especially with 
the rather primitive materials available in those days. Although the 
judgments do not discuss this aspect it may have been self-evident to 
any contemporary so as not to require any discussion. If this is wrong 
it is submitted that Graves' Case is no longer good law and in that case 
is to be explained as a decision made before the subject of originality 
had been fully developed by the courts. [n46]
[32] This analysis is quite pertinent in this case. Most photographs are 
"original" in one if not more of the three respects set out in the 
treatise and therefore are copyrightable. Plaintiff's problem here is 
that it seeks protection for the exception that proves the rule: 
photographs of existing two-dimensional articles (in this case works of 
art), each of which reproduces the article in the photographic medium as 
precisely as technology permits. Its transparencies stand in the same 
relation to the original works of art as a photocopy stands to a page of 
typescript, a doodle, or a Michelangelo drawing. [n47] 
[33] Plaintiff nevertheless argues that the photocopier analogy is inapt 
because taking a photograph requires greater skill than making a 
photocopy and because these transparencies involved a change in medium. 
But the argument is as unpersuasive under British as under U.S. law. 
[34] 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 exactly the same as the 
unprotectibility under U.S. law of a "slavish copy." 
[35] Nor is the change in medium, standing alone, significant. The 
treatise relied upon by plaintiff for the contrary proposition does not 
support it. It states that "a change of medium will often entitle a 
reproduction of an existing artistic work to independent protection." 
[n50] And it goes on to explain: 
"Again, an engraver is almost invariably a copyist, but his work may 
still be original in the sense that he has employed skill and judgment 
in its production. An engraver produces the resemblance he wishes by 
means which are very different from those employed by the painter or 
draughtsman from whom he copies; means which require a high degree of 
skill and labour. The engraver produces his effect by the management of 
light and shade, or, as the term of his art expresses it, the 
chiaroscuro. The required degree of light and shade are produced by 
different lines and dots; the engraver must decide on the choice of the 
different lines or dots for himself, and on his choice depends the 
success of his print." [n51]
[36] Thus, the authors implicitly recognize that a change of medium 
alone is not sufficient to render the product original and 
copyrightable. Rather, a copy in a new medium is copyrightable only 
where, as often but not always is the case, the copier makes some 
identifiable original contribution. In the words of the Privy Council in 
Interlogo AG, "there must . . . be some element of material alteration 
or embellishment which suffices to make the totality of the work an 
original work." [n52] Indeed, plaintiff's expert effectively concedes 
the same point, noting that copyright "may" subsist in a photograph of a 
work of art because "change of medium is likely to amount to a material 
alteration from the original work, unless the change of medium is so 
insignificant as not to confer originality . . ." [n53] 
[37] Here, 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. 
[38] Finally, the amicus argues that this result is contraindicated 
because public art collections in the United  Kingdom charge fees for 
reproductions of photographic images of works in their collections, thus 
evidencing their view that the images are protected by copyright. But 
the issue here is not the position of an economically interested 
constituency on an issue that has not been litigated, at least in this 
century, but the content of the originality requirement of the British 
Copyright Act. Moreover, it is far from clear what the understanding of 
British art collections, if any, actually is. Certainly, for example, 
there are original works of art in British public art collections in 
which copyright subsists and is owned by the collections, in which case 
reproduction rights no doubt are a fit subject for exploitation. [n55] 
[39] For all of the foregoing reasons, the Court is persuaded that its 
original conclusion that Bridgeman's transparencies are not 
copyrightable under British law was correct. 
The Certificate of Registration for The Laughing Cavalier 
[40] As indicated above, plaintiff argues also that the fact that the 
Register of Copyright issued a certificate of registration for one of 
plaintiff's transparencies demonstrates that its photographs are 
copyrightable under U.S. law. The argument is misguided. 
[41] No one disputes that most photographs are copyrightable. In 
consequence, the issuance of a certificate of registration for a 
photograph proves nothing. And while the certificate is prima facie 
evidence of the validity of the copyright, [n56] including the 
originality of the work, the presumption is not irrebuttable. [n57] 
Here, the facts pertinent to the issue of originality are undisputed. 
The Court has held as a matter of law, and reiterates, that plaintiff's 
works are not original under either British or United States law. 
Conclusion 
[42] Plaintiff's motion for reargument and reconsideration of this 
Court's order granting summary judgment dismissing the complaint is 
granted. Nevertheless, on reargument and reconsideration, defendant 
Corel Corporation's motion for summary judgment dismissing the complaint 
is granted. 
[43] SO ORDERED. 

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1. The Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 
(S.D.N.Y. 1998).
2. Id. at 425-26. 
3. Id. at 427 nn.41, 47. 
4. L.R. 4 Q.B. 715 (1869). 
5. The former argument, of course, is at least arguably inconsistent 
with plaintiff's position that its copyrights arose under British law. 
6. See Pl. Mem. in Opp. to Motion for Judg. on the Pleadings at 39-40. 
7. U.S. Const. Art. 1, § 8, Cl. 8. 
8. Berne Convention (Paris text) art. 5(1), reprinted in 9 Melville B. 
Nimmer & David Nimmer, Nimmer on Copyright App. 27 (1998) (hereinafter 
cited as the "Nimmer"). 
9. Sept. 6, 1952, 6 U.S.T. 1341. 
10. Pub. L. 100-568, 102 Stat. 2853 (1988). 
11. U.S. Const., Art. VI, Cl. 2. 
  
12. 133 U.S. 258, 10 S. Ct. 295, 33 L. Ed. 642 (1890). 
13. Id. at 267. 
14. Louis Henkin, Foreign Affairs and the U.S. Constitution 185 (2d ed. 
1996). 
15. 252 U.S. 416, 432, 40 S. Ct. 382, 64 L. Ed. 641 (1920).
16. The issue was whether a statute regulating the hunting of migratory 
birds, enacted to implement a U.S.-Canadian treaty, violated the Tenth 
Amendment by invading a province reserved to the states. Here, on the 
other hand, the question would be whether the Copyright Clause, in 
limiting copyright protection to original works, prohibits the United 
States from agreeing to extend protection to foreign works which do not 
meet that requirement. 
17. Berne Convention arts. 5(1)-5(2); Univ. Copyright Conv. (Geneva and 
Paris texts), art. II, reprinted in 9 NIMMER Apps. 24-25. 
18. Berne Convention art. 5(1)-5(2). 
19. See Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 
(2d Cir. 1985) (applying U.S. copyright law "although the toys enjoyed 
no copyright protection under Japanese law"). 

20. Bridgeman, 25 F. Supp. 2d at 430 & n.71; In re AEG Acquisition 
Corp., 127 B.R. 34, 42 (Bankr. C.D. Cal. 1991), aff'd, 161 B.R. 50 (9th 
Cir. BAP 1993); S. REP. NO. 100-352, 100th Cong., 2d Sess. 53-54 (1988); 
H.R. REP. NO. 100-609, 100th Cong., 2d Sess. 28-32 (1988); see also 
Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 83 (2d Cir. 1995); 1 NIMMER 
§ 1.12[A].
21. 102 Stat. 2853. 
22. Id. at 2855. 
23. 17 U.S.C. § 104(b). 
24. Id. § 102(a). 
25. 1 Nimmer § 1.12[B]. 
26. Id. § 1.12[B], at 1-110 to 1-111. 
27. 25 F. Supp. 2d at 427 nn. 41, 47. 
28. 111 U.S. 53, 4 S. Ct. 279 28 L. Ed. 349 (1884). 
29. Jewelers' Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932, 934 
(S.D.N.Y. 1921), aff'd, 281 F. 83 (2d Cir.), cert. denied, 259 U.S. 581, 
66 L. Ed. 1074, 42 S. Ct. 464 (1922). 
30. Feist Pub., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350-53, 113 
L. Ed. 2d 358, 111 S. Ct. 1282 (1991). 
31. I Nimmer § 2.08[E][1], at 2-130.
32. Id. § 2.08[E][2], at 2-131. 
33. Id. 
34. 536 F.2d 486 (2d Cir.) (in banc), cert. denied, 429 U.S. 857 (1976). 
35. 536 F.2d at 490-91. 
36. Id. (quoting Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F.2d 
159, 161 (2d Cir. 1927)). 
37. 536 F.2d at 492. 
38. Past Pluto Productions v. Dana, 627 F. Supp. 1435, 1441 (S.D.N.Y. 
1986) (citing L. Batlin & Son, Inc., 536 F.2d at 491)). Accord, Durham 
Ind., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980). 
39. Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 506 U.S. 
934, 121 L. Ed. 2d 278, 113 S. Ct. 365 (1992); accord, Leibovitz v. 
Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir. 1998).
40. In Hearn v. Meyer, 664 F. Supp. 832 (S.D.N.Y. 1987), Judge Leisure 
held on the authority of Batlin that "slavish copies" of public domain 
reproductions of public domain original works of art were not 
copyrightable despite the great skill and effort involved in the copying 
process, and minor but unintentional variations between the copies and 
the works copied. 
41. 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358. 
42. Beverly Wolff, Copyright, in ALI-ABA Course of Study, Legal Problems 
of Museum Administration, C989 ALI-ABA 27, at *48 (available on 
Westlaw). See also Lynne A. Greenburg, the Art of Appropriation: 
Puppies, Piracy, and Post-Modernism, 11 Cardozo Arts & Ent. L.J. 1, 
20-21 (1992) (photographic copies of original art photographs taken by 
the famous photographer, Edward Weston, which were made to "deconstruct 
the myth of the masterpiece" not copyrightable). 
43. The action was based on the Fine Arts Copyright Act of 1862, 25 & 26 
Vict. c. 68, rather than the current British copyright statute. 
44. L.R. 4 Q.B. at 722. 
45. Hugh Laddie, Peter Prescott, & Mary Vitoria, The Modern Law of 
Copyright and Design § 3.56, at 238 (1995) (footnotes omitted, emphasis 
added). 
46 Id. at 239 n.3 (emphasis added).
47. Plaintiff concedes that a photocopy is not original and hence not 
copyrightable. (Tr., 9/14/98, at 22). 
48. 1 A.C. 217 (P.C. 1989), 3 All E.R. 949, 970 (1988) (appeal taken 
from Hong Kong).
49. Id. 3 All. E.R. at 971-72. 
50. E.P. Skone James et al., Coopinger and Skone James on Copyright § 
3-34, at 62 (1991) (emphasis added). 
51. Id. (emphasis added). 
52. 3 All E.R. at 971-72. 
53. Sutcliffe Aff. P 12 (emphasis added). 
54. 25 F. Supp. 2d at 426. 
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) 
55. The amicus's suggestion that this Court's holding will deprive 
public art collections of fee revenue for reproduction of photographs of 
their works of art more properly is directed to Parliament, which of 
course has plenary power over the protection available under British 
copyright law. 
56. 17 U.S.C. § 410(c). 
  
57. E.g., Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir. 1991). 
Indeed, the Copyright Act leaves the "evidentiary weight to be accorded 
the certificate . . . . [to] the discretion of the court." 17 U.S.C. § 
410(c). 

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