Are photos of ancient coins copyrightable?

Museums make money licensing copies of art in their collections to poster vendors and textbook publishers.

Non-art publishers are usually guarenteed a monopoly by copyright. (Nearly all books the public wants are still protected by copyright, and music is protected by copyright and state laws). This isn't true for art publishing -- many of the best works have long passed into "the public domain", meaning the monopoly has expired and the public is free to copy the art.

When a work is in the public domain the publisher can buy the negative or digital scan from anyone. Museums traditionally protects their licensing revenue stream two ways. First, they ban photography or tripods in the museum. Second, they claim copyright on the photograph used to facilitate the reproduction. These copyrights last a long time -- the life of the photographer plus 70 years in some countries! By keeping the public from high-quality photographs the museum corners the supply.

It takes a lot of creativity to paint a portrait or take an artistic original photograph. Taking an accurate photograph of a painting hanging on the wall isn't difficult. It seemed unfair for museums to get free 100+ year copyright enforcement on mere photos of paintings, so there was a lawsuit. In the famous "Bridgeman" lawsuit a judge ruled that there is no new copyright on photographs of paintings and "2D" artworks.

After Bridgeman the law books didn't change but the law did. Now anyone can "probably" get away with selling reproductions of public domain paintings. No permission is needed.

The art on ancient coins (except fakes, which will be address in a subsequent post) are in the public domain. As public domain works, Americans have always been free to publish them from their own scans or negatives.

As a web-publisher of ancient coin photographs, I have wondered if I am free to publish coins from others' photographs.

Certainly, if the others' photograph is in the public domain I can freely use it without license. Bridgeman allows me to ask a new question, can I use recent photographs for my own purposes, without paying a licensing fee?

(There is of course also a question of ethics. Is it ethical for me to build upon another scholar's work? This will be addressed in a future post, but the answer is usually "yes").

The Bridgeman decision only applies to photographs of 2D art. Most coins have some depth (the exception being printed "coins" like wooden nickels). Greek coins are almost sculptural. Does Bridgeman apply to them?

A good lawyer could argue either way. As a non-lawyer my gut instinct is that a judge would ask the jury to rule that photographs showing "originality" (special lighting and camera angles) earn the photographer a copyright. Non-original photographs (flatbed scans, or that mirror-box) probably don't.

Unfortunately copyright law isn't like the speed limit where you are safe at 55mph and risky at 56mph. It's all up to how a jury of your peers feels about acts of creativity vs. mechanical reproduction.

Coin photographers who wish to control (and sell) the right to copy their photographs have another tool: Arrangement and numbering. It may be non-infringing to copy ten coin pictures, but an infringement to copy a single picture of ten coins if the coins are arranged in some way (like biggest to smallest) or numbered.

So while I could probably defend myself from a lawsuit for reprinting the photographs of ten coins there is little chance I could issue bootleg copies of SNG BMC Black Sea and get away with it.

For the old books my Digital Historia Numorum project is interested in the photo plates themselves have entered the public domain. Bridgeman provides a valuable protection to this web site by making it non-infringing to scan the reprint rather than the original volume.

I can now confess that the plates of BMC Caria I've displayed for the past four years come from the Forni reprint, not the BMC/Autotype original.

It may be legally important to compare the original and reprint. For example, the Ares reprint of Christodoulos the Counterfeiter replaced the black background of the original with a white background. More recently, the terrible Kessinger reprint of Guide to the Principal Gold and Silver Coins of the Ancients copied the Argonaut reprint rather than the original, which included a few additional notes. The white mask and the additional text are arguably copyrightable.