Archaeological sketches of visual works of art in public domain
<p>In several jurisdictions, faithful reproductions of visual works of art in public domain are not subjected to copyright. This include both US with its <em>Bridgeman Art Library v. Corel Corp.</em> decision as well as EU where <em>Article 14 of Directive (EU) 2019/790 of the European Parliament and of the Council</em> explicitly states:</p>
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<p>Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation</p>
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<p>Most online articles that explain the legal issues surrounding reproductions of public domain artwork focus on photographic reproductions, photocopies and scans.</p>
<p>However, I can't seem to find any information regarding archaeological pen-and-ink sketches and drawings of ancient wall or vase paintings (e. g. Egyptian hieroglyphs and such). Would such sketches and drawings be considered faithful reproductions?</p>

<p>The reasoning of <a href="https://scholar.google.com/scholar_case?case=5068002142390131270&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow noreferrer">Bridgeman Art Library, Ltd. v. Corel Corp.</a>, 36 F. Supp. 2d 191 is that under US copyright law, and as decided in the prior decision, &quot;exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original&quot;. Being a district court ruling, it is not precedential, but it has influential value. Citing prior rulings, protection is not afforded to a work &quot;that amounts to nothing more than slavish copying&quot;, and &quot;'slavish copying,' although doubtless requiring technical skill and effort, does not qualify&quot;. The reasoning thus does not rely on the specific medium of the reproduction, it relies on the &quot;originality&quot; of the reproduction. It is, in these cases, relevant whether a reproducer set out to create an exact copy, versus to be inspired by an original and create something new. When &quot;the point of the exercise was to reproduce the underlying works with absolute fidelity&quot;, &quot;[c]opyright is not available in these circumstances&quot;.</p>
<p>In a similar ruling which cites Bridgeman, <a href="https://caselaw.findlaw.com/us-10th-circuit/1291978.html" rel="nofollow noreferrer">Meshwerks, Inc. v. Toyota Motor Sales U.S.A</a> finds that a form of automated copying that is not photographic in nature is also not subject to copyright protection (in this case, a mechanical contraption &quot;scanned&quot; a vehicle non-visually).</p>
<p>Accordingly, a slavishly accurate re-drawing of a wall painting etc. would not be protected. Nor would an inaccurate re-drawing, if the intent were to accurately re-draw the work and the artist simply didn't have the technical skill to accurately reproduce the work. In such a case, proving intent would be crucial.</p>

<h2>Undecided, but probably such a drawing is not protected</h2>
<p>Those jurisdictions that that follow the logic of <a href="https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp." rel="nofollow noreferrer"><em>Bridgeman Art Library v. Corel Corp.</em>, 36 F. Supp. 2d 191 (S.D.N.Y. 1999)</a> deny copyright protection to &quot;faithful&quot; reproductions because such reproductions lack any trace of originality. The term used in many court decisions is &quot;slavish reproduction&quot; suggesting that the copyist exercises no more judgement than a slave might. The term &quot;exact reproduction&quot; is also used.</p>
<p>As the <em>Bridgeman</em> court wrote (in footnote 41):</p>
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<p>With respect to derivative works, the originality requirement warrants that there be a distinguishable variation between the work in which copyright is sought and the underlying work.</p>
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<p>Simply including a frame in the image has been held to make the derivative image protected by copyright, because it is no longer &quot;exact&quot;. Whether the differences induced by manual copying,. when the intent is to be as exact as possible, would introduce the &quot;distinguishable variation&quot; required for copyright protection has not been decided by any court case of which i am aware. I suspect that it would not, as there is no <strong>intentional</strong> originality here.</p>
<h3>The <em>Bridgeman</em> Opinion</h3>
<p>Note that the Bridgeman Court determined the issue of whether the images were protected by copyright under UK law, not US law.</p>
<p>As the court notes on footnote 47, the same decision would have been reached under US law, in accord with <a href="https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co." rel="nofollow noreferrer"><em>Feist Publications, Inc., v. Rural Telephone Service Co.</em>, 499 U.S. 340 (1991)</a></p>
<p>Note that the <em>Bridgeman</em> decision was by a US <strong>district</strong> court, and so is not technically binding precedent. But it has been treated as precedent in the US, and as persuasive in other jurisdictions.</p>
<p>The <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/25/421/2325910/" rel="nofollow noreferrer">Bridgeman opinion</a> states:</p>
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<p>For the reasons discussed above, whether copyright subsists in Bridgeman's transparencies is a question of United Kingdom law. The result depends upon the Copyright, Designs and Patents Act 1988 (the &quot;UK Act&quot;) which renders &quot;original literary, dramatic, musical or artistic works&quot; copyrightable.{ The Copyright, Designs and Patents Act, 1988, ch. 1, § 1(1) (UK) (emphasis added).} To be original, a work</p>
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<p>need not be original or novel in form, but it must originate with the author and not be copied from another work.{<em>Interlego AG v. Tyco Industries Inc</em>., 25 R.I. 652, 57 A. 867, 1 A.C. 217 (P.C.1989), 3 All E.R. 949, 970 (1988) (appeal taken from Hong Kong).}</p>
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<p>That is not to say that the author, in all circumstances, must create the entire work from scratch to be accorded copyright protection.</p>
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<p>Protection of a derivative work turns on whether the [author's] skill, judgment and labour transforms the underlying work in a relevant way.{2 MELVILLE B. NIMMER AND PAUL E. GELLER, <em>INTERNATIONAL COPYRIGHT LAW &amp; PRACTICE</em> § 2[3][b], at UK-28 (1998) (citations omitted), (hereinafter &quot;INTERNATIONAL COPYRIGHT LAW&quot;)}</p>
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<p>That is, the originality requirement is not met where the work in question      &gt; &gt; is wholly copied from an existing work, without any significant addition, alteration, transformation, or combination with other material.&quot;{<em>Id</em>., § 2[1][b][ii] at UK-19.}</p>
<p>This principle is exemplified in the Privy Council's oft quoted observation that although:</p>
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<p>[i]t takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, ... no one would reasonably contend that the copy painting or enlargement was an `original' artistic work in which the copier is entitled to claim copyright. Skill, labor or judgment merely in the process of copying cannot confer originality.... There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work.{<em>Interlego</em>, 3 All E.R. at 971-72.}</p>
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<p>In light of the originality requirement, Bridgeman's images are not copyrightable under the UK Act. It is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium. The images were copied from the underlying works without any avoidable addition, alteration or transformation. Indeed, Bridgeman strives to reproduce precisely those works of art.</p>
<p>Bridgeman, nevertheless, claims that its works are original. It argues first that the variation in medium establishes sufficient variation from the underlying works to support originality.{ Pl. 12(b) (6) Mem. at 8.} The Court is unpersuaded.</p>
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<p>`[T]he mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium.'</p>
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<p>{ <em>L. Batlin &amp; Son, Inc. v. Snyder</em>, 536 F.2d 486, 491 (2d Cir .) (<em>en banc</em>) (quoting 1 M. NIMMER, THE LAW OF COPYRIGHT § 10.2, at 94) (1975), <em>cert. denied</em>, 429 U.S. 857, 97 S. Ct. 156, 50 L. Ed. 2d 135 (1976).</p>
<p>{{United States law is persuasive in construing English law for two reasons. First, there is substantial similarity between the originality requirements of the UK Act and the Copyright Act. As does the U.K. Act, the Copyright Act extends protection only to &quot;original works of authorship.&quot; 17 U.S.C. § 102(a) (1998). A work is original if it owes its creation to the author and was not merely copied. <em>Feist Publications</em>, 499 U.S. at 345, 111 S. Ct. 1282. With respect to derivative works, the originality requirement warrants that there be a distinguishable variation between the work in which copyright is sought and the underlying work. <em>Batlin</em>, 536 F.2d at 490-91; <em>Matthew Bender &amp; Co. Inc. v. West Publishing Inc.</em>, No. 97-7910, 158 F.3d 674, 1998 WL 764837, at <em>6-</em>9 (2d Cir.1998). Important to this calculus is that the demonstration of some physical, as opposed to artistic, skill does not constitute a &quot;distinguishable variation.&quot; <em>Durham Industries, Inc. v. Tomy Corp.</em>, 630 F.2d 905, 910 (2d Cir.1980) (citing <em>Batlin</em>, 536 F.2d at 491).</p>
<p>{{Second, the Privy Council itself has looked to American law as persuasive authority with respect to copyright originality. See <em>Interlego</em>, 3 All ER at 969 (quoting Story, J.).}</p>
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<p>As discussed above, the law requires &quot;some element of material alteration or embellishment&quot; to the totality of the work. At bottom, the totality of the work is the image itself, and Bridgeman admittedly seeks to duplicate exactly the images of the underlying works.</p>
<p>...</p>
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<p>[T]here has been no independent creation, no distinguishable variation from preexisting works, nothing recognizably the author's own contribution      &gt; that sets Bridgeman's reproductions apart from the images of the famous works it copied.[46] Consequently, Bridgeman's images lack sufficient originality to be copyrightable under the UK A47.47.tt/ct.{ For the reasons discussed supra, footnote 41 [Quoting <em>Feist</em>], the Court would reach the same result under United States law.} [<em>Footnotes shown in {braces}. 2nd and subsequent paragraphs of footnotes start with &quot;{{&quot;. Internal quotes displayed with blockquote syntax are shown as separate paragraphs, even where they were not separate paragraphs in the original opinion.</em>]</p>
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copyright public-domain