Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions
by Kathleen Connolly Butler
Comm/Ent: Hastings Communications and Entertainment Law Journal 21 (Fall 1998)

Summary

http://www.uchastings.edu/comment/PUB-ADMIN/Archives/volumes/volume21.htm

This article addresses an emerging and significant problem in the realm of copyright and art law: the control of public domain art images through the copyright of photographic and digital reproductions. This problem occurs since galleries or collections have control over the duplication of fine art images by the public and have used this control to generate exclusive reproductions of the art, which, under present law, are copyrightable themselves, precluding public use of these images of concededly public domain art. Professor Butler argues that this de facto control over art which is rightfully in the public domain both gives economic advantage to parties which down own rights in the art and deprives the public at large from using and enjoying these public treasures. This problem is somewhat unique to art objects since, unlike other forms of expression such as music or literature, anyone seeking to duplicate the art must have access to the original itself, making the power of the art owners great indeed.

In exploring a remedy to this problem, Professor Butler examines the history and development of the definition of "originality" in copyright law. Specifically, she argues that photographic and digital reproductions or fine art, as are used in these situations, do not meet the constitutional minimum of originality, meaning that they should not be afforded protection. For this reason, Professor Butler concludes that the "alternate test" fashioned by courts should be abandoned as a measure of originality in art reproductions. This test does not reflect the true purposes of copyright protection in this context and in fact frustrates the free dissemination of public domain art--a goal which lies at the heart of copyright law.

Butler's article is cited by Hirtle 2003
http://www.archivists.org/governance/presidential/hirtle.asp

See also the discussion on the 1999 Bridgeman vs. Corel decision
http://www.casebook.org/forum/messages/4922/9505.html