Photographs of Public Domain Paintings: How, If at All, Should We Protect Them?

Abstract

A photograph of an original painting that reproduces it as faithfully as possible can make the painting’s image available to a much wider audience than can visiting the museum where the painting hangs. If the painting is in the public domain, then a photographer needs no copyright permission to photograph it, but the question arises whether copyright protects the resulting photograph. In 1998, the court in the Bridgeman Art Library case answered that question in the negative. That decision has been subject to some resistance from museums and art reproduction photographers. And because museums, even without any copyright protection, control access to the paintings themselves, the court’s ruling does not necessarily mean that making a photo of a public domain painting is significantly easier than before Bridgeman.

This article considers anew what protection, if any, should be granted to art reproduction photographs of public domain paintings. It weighs the possible need for incentives to invest in producing such photographs, as well as the impediments that granting exclusive rights in them would present to using the underlying public domain work. Given the incentive and access concerns, it examines whether art reproduction photographs should perhaps receive some sui generis protection against copying, but not complete copyright protection.

The article then explores whether Congress could enact a sui generis regime if it were desirable. If art reproduction photographs come within Congress’s Copyright Clause power, then Congress could likely exercise that power to adopt a sui generis regime. But doing so would likely run afoul of international copyright obligations, which could significantly constrain Congress’s ability to grant art reproduction photographs less generous protection than ordinary copyright law. If art reproduction photographs are not proper subjects for protection under the Copyright Clause, Congress would face the question of whether it can use some other constitutional power to grant exclusive rights in works that do not qualify for Copyright Clause protection. The law on that question remains quite unclear, but constitutional constraints, like international ones, might preclude the adoption of a sui generis regime for art reproduction photographs. In sum, international and constitutional constraints might limit Congress either to providing full copyright protection or no protection at all—possibly equally unattractive options for mediating the incentive and access interests at stake.