If you’re a designer or business looking to use images of historical art collections from museums, you may encounter copyright notices alongside such images and requests for licensing fees for commercial use. However, in many jurisdictions, copyright protection is typically granted only for a limited period. For instance, in Taiwan, the economic rights of copyright generally last for the life of an individual author plus fifty years.^[1] Accordingly, the copyrights of the historical art collections in museums would have expired already, and those works would have entered the public domain and may be freely used by all. Copyright claims by museums then raise a critical issue: are museums actually entitled to claim and enforce copyright for their digital reproductions of art in the public domain?

Recent events, such as Taiwan’s National Palace Museum attempting to pursue intellectual property claims following the leak of its high-resolution images, have brought renewed attention to the legal complexities surrounding these claims.^[2] The issue at hand concerns two layers of copyright: the copyright of the work of art itself, and the copyright of the digital reproduction (image) of the work of art. For the purpose of this article, we assume the work itself does not warrant copyright protection, and focus only on the latter issue. This article analyzes judicial trends in the US and Taiwan through relevant case studies and explores alternative legal protection frameworks beyond traditional copyright in several jurisdictions.

I. Traditional Copyright

In many jurisdictions, to qualify for traditional copyright protection, a work must be original.^[3] Originality is generally assessed based on two factors: independent creation and a minimal degree of creativity. However, the specific threshold of originality seems to vary across cases, particularly in those involving photography or imaging. The mechanical nature of the recording apparatus adds complexity to judicial assessments, as courts must distinguish between technical proficiency and genuine creative expression in determining whether a work qualifies for copyright protection.

i. US Judgments

 
The US case Bridgeman Art Library, Ltd. v. Corel Corp. (1999) remains a landmark decision, where the court ruled that Bridgeman’s digital reproductions of works by European old masters lacked the originality required for copyright protection, as they were “slavish copies” of existing works. The court emphasized that “sweat of the brow” alone, or effort expended in the digitization labor, does not equate to “creative spark”, which is the sine qua non of originality.^[4]

However, Bridgeman’s threshold for originality was tested in Schiffer Publishing, Ltd. v. Chronicle Books (2004), where the court upheld Schiffer’s copyright over photographs of quilts. Schiffer argued that its photographs were not intended as exact replicas but as expressive, “visually interesting” works, with photographers testifying that they never compared the images to the original fabric swatches. The court distinguished Schiffer’s photographs from Bridgeman’s by recognizing that the former went beyond faithful reproduction, and reflected artistic intent through creative choices regarding the lighting, composition, and perspective, which contributed to their originality.^[5] This case clarifies that modest creative inputs, even in object photography, may meet the originality threshold in the US.

 ii. Taiwan Judgments

As Taiwan has not had a definitive ruling directly regarding the copyright status of images of public-domain art, these US judgments may serve as references for Taiwanese courts. Nonetheless, several adjacent cases regarding the originality of photographs can provide insight on how Taiwanese courts may approach the issue.

In Taiwan Changhua District Court Judgement No. 109-Zhi-Yi-11 (2020), the court dismissed a copyright claim over photographs of vintage signboards, referencing the Bridgeman decision to conclude that these images lacked originality. While the court acknowledged some differences between the photographs and the signboards, such as glare and the combination of two signboards in one image, it speculated that the differences likely resulted from technical constraints rather than creative expression. On appeal, the Taiwan Intellectual Property and Commercial Court (IP Court) upheld the district court’s ruling, emphasizing that originality, not effort or expense (i.e. “sweat of the brow” in Bridgeman), should be the key requirement for copyright protection. The IP Court further clarified that, with the advancement and accessibility of photographic equipment, technical adjustments such as aperture settings, lighting, or color correction should not qualify as creative contributions. Instead, copyright protection hinges on whether the photographer’s creative choices transcend mechanical reproduction to convey distinct personality and individuality.

Figure 1. Image 3, Appendix, IP Court Judgement No. 109-Xing-Zhi-Shang-Yi-82 (2020).
One of the disputed photographs of signboards in the case discussed above.

Interestingly, in another case involving object photography, the district court similarly denied copyright protection; however, the IP Court reversed and remanded this decision, and the Supreme Court later upheld the IP Court’s ruling. In Supreme Court Judgement No. 113-Tai-Shang-1732 (2024), the court ruled that promotional photos of Pampers diaper boxes satisfied the lowest threshold for originality and thus qualified for copyright protection. While the photographs were intended to accurately depict the products, the court emphasized that the goal of faithful representation does not preclude the photograph from being considered original. The court recognized that the photographers made creative choices to depict the product’s appearance accurately, such as selecting the appropriate items and locations, adjusting settings like aperture, depth of field, and white balance to reduce glare, enlarging the front view of the packaging to emphasize the uniqueness of the limited-edition packaging, and post-editing any flaws. Therefore, these decisions reflected sufficient originality.

Figure 2. Image 1, Appendix, IP Court Judgement No. 112-Xing-Zhi-Shang-Yi-36 (2023).
One of the disputed photographs of diaper boxes in the case discussed above.

The differing outcomes in the two Taiwan cases may seem contradictory, but may be explained by the fact that the Pampers photographs involved three-dimensional objects, necessitating creative decisions regarding angles, perspectives, and composition, beyond mere technical adjustments. In contrast, the signboards were deemed two-dimensional, contributing to the court’s determination that the photographs lacked creative input. However, this distinction raises questions about whether any object can truly be considered two-dimensional, as photographing even flat objects involves choices on angle and perspective, particularly considering that objects like signboards are not typically viewed at eye level.

II. Beyond Traditional Copyright

The copyrightability of digital reproductions of public-domain artworks varies depending on different judicial interpretations of the originality requirement. If such reproductions are not deemed copyrightable, museums may not be justified in claiming licensing fees for their use. However, to sustain funding for conservation and digitization efforts, museums may seek to retain the ability to charge for image access using alternative legal frameworks beyond traditional copyright, such as related rights and cultural heritage laws.

German copyright law, for instance, provides related rights protection for photographs without creativity but a minimum level of “personal intellectual effort”. In Reiss-Engelhorn Museum v. Wikimedia Foundation (2018), the German Federal Court ruled that the museum’s high-resolution images of public-domain art are protected by related rights, as decisions regarding light, distance, angle, and focus etc. demonstrated sufficient intellectual effort.^[6]

Italy’s Code of Cultural Heritage allows public institutions to impose concession fees for commercial reproductions of cultural heritage objects. This legal protection was upheld in cases restricting unauthorized reproductions of iconic works like Michelangelo’s David and da Vinci’s Vitruvian Man in 2023.^[7]

Similarly, Taiwan’s Cultural Heritage Preservation Act restricts unauthorized reproduction of works of antiquity, though its applicability to digital reproductions remains debated.^[8] Additionally, Taiwan’s Copyright Act recognizes registered “plate rights”, a related right which grants exclusive reproduction rights to a plate maker who photocopies, prints, or otherwise reproduces and first publishes a public-domain work.^[9]

For businesses, this means that using images of museum collections may require not only traditional copyright clearance, but also compliance with other applicable local regulations.

III. Conclusion

We recognize that it is essential to balance the need for museums to secure sufficient income to preserve and digitize their collections with the public’s interest to access and use public-domain artworks at reasonable costs. For businesses looking to utilize public-domain artworks, they should be mindful that museum images of public-domain art may still be subject to copyright, related rights, or other regulatory frameworks. Given the variations in legal frameworks across jurisdictions and differing court interpretations, it is advisable to assess the risk of infringement on a case-by-case basis before use of any images of public-domain art.

If you have any questions or require additional information on the legal issues related to copyright, please contact Ling-ying Hsu at lhsu@winklerpartners.com.

[1] See Taiwan’s Copyright Act, Article 30.

[2] See the National Palace Museum’s announcement, March 13, 2023 (https://www.npm.gov.tw/News-Content.aspx?sno=04013271&l=1&p=7&idstr=MDEwMDAwMDE=); and Cao Yan-Jun and Wang Xing-Zhong, “100,000 National Palace Museum Artifact Images Leaked; Investigation Launched by Bureau of Investigation”, Public Television Service, March 14, 2023 (https://news.pts.org.tw/article/627222).

[3] See “How to Obtain Copyright Protection?”, World Intellectual Property Organization (https://www.wipo.int/en/web/copyright/protection).

[4] See Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).

[5] See Schiffer Publishing, Ltd. v. Chronicle Books, LLC, Civil Action No. 03-4962, 2004 WL 2583817 (E.D. Pa. Nov. 12, 2004).

[6] See Benjamin Beck and Konstantin von Werder, “German Federal Court of Justice Confirms Copyright in Photographs of Public Domain Paintings”, Mayer Brown LLP, Lexology, March 21, 2019 (https://www.lexology.com/library/detail.aspx?g=a3fbc691-11fa-4bfe-805c-c07ab323f01d).

[7] See Chiara Gallo, “The Second Chapter of the Vitruvian Man Dispute and Other Developments in the Italian Cultural Heritage Framework”, The Institute of Art & Law, June 24, 2024 (https://ial.uk.com/vitruvian-man-developments/).

[8] See Taiwan’s Cultural Heritage Preservation Act, Article 71.

[9] See Taiwan’s Copyright Act, Article 79.