Lewis A. Kaplan

“ 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. [41] 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." ”

“ 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, [56] including the originality of the work, the presumption is not irrebuttable. [57] 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. ”

“ 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 ..." [53]
[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." [54] There has been no suggestion that they vary significantly from the underlying works. ”

“ 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." [50] 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 ”

“ 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? ”

“ 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." ”

“ 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. ”