This is a black-and-white print of Indigenous artist Mandy Davis' work Emu. The colour photograph would be difficult to distinguish from the original artwork from a distance – the colours were carefully calibrated, and there are no shadows or tell-tale flash glare. Another example of a colour photograph faithfully capturing an artwork is Richard Glover's image of Andrew Leslie's 2008 work at, a sculpture of painted aluminium rods reflecting coloured light onto the supporting wall.1 In each case, the photographer has captured the work with perfect fidelity.
Obviously these photos can only be taken with the permission of the owner of the copyright in the underlying work (usually the artist) as both are a substantial reproduction. Assuming however that such permission has been obtained, what are the photographer's rights? Under Australian law a photograph is an artistic work protected by copyright subject to the threshold requirement of originality.2 There can be no argument as to the validity of such an approach when considering the carefully composed photographic works of Tracey Moffatt and Bill Henson. But what of the photographer who faithfully reproduces an underlying artwork? On one view, the skill and judgment required is no less than what is used by Ansel Adams in his naturalistic landscape images, and arguably considerably more than the mobile phone 'happy snaps' taken by audience members of performers at the ARIA awards. No one questions the photographer's entitlement to copyright in each of those examples.
In the United States, this debate has taken place in the context of the rights of museums to assert copyright over their photographs of public domain artworks. Such images are an important revenue source for such institutions which reproduce them onto posters, t-shirts and other merchandise. Their ability to claim copyright in those images is critical in preventing competition and maintaining market share, something dealt a considerable blow when the Second Circuit in Bridgman Art Library Ltd v Corel Corp3 found that photographs intended to reproduce an underlying work 'with absolute fidelity' didn't meet the minimum standard of originality and had no copyright.4
In Australia this issue has yet to be considered. At its heart is the question as to what constitutes originality for the purpose of copyright. Originality concerns originality of expression not ideas. The work must be the result of the author's skill, labour or experience and not merely copied. Originality does not, in Australia, involve an assessment of intellectual effort or creative spark. Thus the verbatim report of a public speech taken down in shorthand then transcribed confers copyright on the reporter.5
While a photocopy of an artwork made on a colour printer would lack originality, the technical skill and expertise involved to secure the two photographic reproductions seen here do meet that threshold test. At a philosophical and policy level, the question then becomes whether that is the right outcome. In the writer's opinion, adoption of the Bridgman approach is neither sensible nor justified. If restricted solely to reproductions of public domain works, it draws an artificial distinction between photographs of old and new works. It's likely to embroil the Courts in difficult examinations of the motives of the author – was the intention to make a perfect copy? Such analysis has traditionally fallen outside the Courts' purview on the basis that what constitutes 'art' is a function of form (is it a work or other subject matter) and expression (as objectively communicated by the work or subject matter) rather than the creator's intention. What if, for example, the photographer seeks to faithfully reproduce Leslie's work but misunderstands the significance of capturing the reflected play of light and architecture? It is arguable that a 3D sculpture can never be reproduced with 'perfect fidelity' in a 2D photograph. It is a distortion of the originality test which has the result that the photographer's effort and skill is valued if his subject matter is a square meter of brick wall but not an Andy Warhol.
On a policy level there is value in shoring up the ability of public collecting institutions to control the dissemination of reproductions of works out of copyright. Subject to the artist's agreement, this is also true of works still in copyright. Such institutions generally have a vested interest in the public's appreciation and access to art and are best placed to ensure that reproductions are high quality. Their use of copyright generates revenues which may be used to make new acquisitions from emerging artists, or to educate and inform the public as to the significance of art as part of our social and cultural fabric.
The work of art shown on this page has been reproduced with care and attention so as to enable the viewer to appreciate it's beauty despite having no access to the original. That in itself is an expression of creative vision by the photographer requiring an investment of skill and energy and should continue to deserve the protection of the Copyright Act.
Delwyn Everard is senior solicitor at Arts Law.
1 at can be viewed here: http://www.johnbuckley.com.au/exhibitions/leslie/positions/image_1.html
2 Copyright Act 1968 section 10(1) – definition of artistic work – and section 32
3 25 F. Supp. 2d 421 (S.D.N.Y); and 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
4 36 F. Supp. 2d at 197
5 Walter v Lane,  AC 539