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Hastings Communications and Entertainment Law Journal

Abstract

Under the explicit terms of both the Copyright Act and the Constitution, everyone-scholars and laypeople alike-should be free to "reproduce, prepare derivative works from, [or] distribute" copies of Eakins paintings. But, contrary to the Copyright Act, some art institutions are legally requiring its image users to agree that, "any reproduction or use of the Photographs or Reproductions" contrary to the terms of its licensing agreements, "will be an infringement of copyright." Beginning with an analysis of the Southern District's holding in the two Bridgeman opinions, this article examines the reaction that the decisions have incited among various art image licensors, specifically the Bridgeman Art Library itself and various major museums. Focusing on the way in which these entities have fallen back on evasion, denial, and, importantly, contract to shore up questionable copyrights, this article argues that the art historical and legal communities need to act now if they want to preserve meaningful, productive access to public domain artworks. In the absence of such action, Bridgeman's response, or more accurately, lack of response to the Southern District's ruling could very well represent the future of public domain imagery.

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