Intellectual property law - photographs of artworks - should prints of works of art be denied copyright protection simply because they are not 'original'?

Copyright exists only in 'original' works: that is, where a degree of skill and labour has been expended by the author.

The level of skill and labour required to produce the work is extremely low.

Interestingly, artistic works are defined in the Copyright Designs & Patents Act 1988 as being 'irrespective of quality'.Because the taking of a photograph of an artwork - of the quality necessary for commercial exploitation - is a skilled process, even with the benefit of modern technological advances, it was considered that the photograph itself is entitled to copyright protection whatever the copyright status of its subject matter.This is important to museums, art galleries and photographic libraries, since the ability to derive income from the sale of photographs of paintings is fundamental to their commercial activities.This view has been challenged recently in the US courts in the case of Bridgman Art Library Ltd v Corel Corporation (see www.nylj.com/decisions/99/02/022699ba.htm) where the Southern District Court of New York held, applying English law, that the 'clip art' CD0-roms marketed by the defendant which, it was claimed, had been copied from Bridgman's library of transparencies of celebrated works of art, did not infringe copyright.Bridgman's immediate application for re-argument and reconsideration was granted with the result that US law was held in fact to apply (albeit that it was held that US law also conferred no copyright protection) but the judge also reconsidered the position under English law and, by analogy with the position in relation to photocopying (where no copyright subsists - see The Reject Shop Plc v Manners [1995] FSR 870) it was held that the author must make some 'identifiable, original contribution' so that a photograph which consists entirely of an artwork has no copyright protection.Therefore, it would follow that the better the quality of the photograph so the more accurate the reproduction of the underlying work, the less likely it will have copyright protection.English commentators appear to agree that the judge's reasoning was flawed.

Bridgman's photographers did exercise considerable skill as to the lighting, camera angle and position, type of film, etcetera, to be used in order to make the transparency look as identical to the underlying work as possible.

If the same skill and labour is used to photograph a model in a studio, a countryside scene or a sporting event, all of which photographs would be protected by copyright, I would suggest there is no good reason why a photograph of a work of art should not be similarly protected.

The error arises from the assumption that an accurate photographic reproduction is merely a slavish copy of the underlying work.The UK Museums Copyright Group considers the issue to be of such importance that it has commissioned a report on the case and an opinion from leading copyright counsel.

He has apparently advised that a photograph of an artwork qualifies as a matter of principle for copyright protection whether it is of a three dimensional work such as a sculpture or a two dimensional painting.

The decision in this case is not binding on English Courts and, in my view, it is unlikely to be followed.