Previously, I wrote a post documenting my confusion and paranoia in using images from museums’ websites. I asked whether my use of these images is allowed under the Fair Use provision of the US Copyright Act and (conveniently but rightly?) decided that it was. Now, I want to take a step back* and ask whether these images are copyrighted in the first place. After all, the underlying objects are antiquities and so cannot possibly be protected by intellectual property laws themselves. As such, the question becomes: can a picture of an object that is uncopyrightable be copyrighted?
Since copyright laws are nothing if not complicated, the answer**seems to be a resoundingly uncertain “maybe”. The case of Bridgeman Art Library v. Corel sets the precedent that “exact photographic copies of public domain images could not be protected by copyright” because “a photograph which is no more than a copy of the work of another as exact as science and technology permits lacks originality.” The need for originality stems from the fact that copyright protection is afforded only to “original works of authorship” (§ 102 of US Copyright Act) and so “slavish copying, although doubtless requiring technical skill and effort, does not qualify” for such protection.
By this account thus far, the answer seems to be that the images taken by the museums cannot be copyrighted. However, lest I be the receiver of the admonishment “I know you think you understand what you thought I said but I’m not sure you realize that what you heard is not what I meant”, let me say right now that I don’t even think that I really know what the court said, leave alone understand what it means. This is because while denying copyright protection to the Bridgement Art Library’s photos, the court reaffirms that “some photographs of other works may entail sufficient originality to merit copyright protection”. How would I know whether the Getty Villa’s and the Hammer Museum’s images are indeed “some photographs of other works”?
To further compound my confusion, as Mazzone writes in Copyfraud, “the court in Bridgeman was careful to note that it was dealing with photographs of two-dimensional works. A photograph of a three-dimension work, because of the different photographic techniques involved, may entail sufficient originality to merit copyright protection.” The Kouros, as you may well remember, was very 3-dimensional indeed.
So after all that reading that you did as well as I, neither one of us is any clearer on whether the particular photos in question are copyrightable. I should just remember to bring my own camera and snap my own photos next time, don’t you think?
*: Take a step back. That’s a popular expression; I wonder if it’s trademarked.
**: In no way to be construed as legal advice. Duh!