There was an interesting panel discussion at the New York City Bar Association last night on Bridgeman v. Corel, the now nearly ten-year old Southern District decision holding that photographs of public domain works are not protected by copyright because they lack the requisite "originality." Rebecca Tushnet has a thorough play-by-play, and later adds some related thoughts.
Judge Posner was originally supposed to be on the panel but couldn't make it (and was ably replaced by Judge Kaplan, the author of the Bridgeman decision), but here's what he might have said, from his The Intellectual Structure of Intellectual Property Law (with William Landes):
"The court [in Bridgeman] likened these transparencies to copies produced by a photocopy machine and held that since photocopying obviously fails the originality requirement of copyright law, ... so did the transparencies. Left out of this account is the fact that ... making high-quality transparencies of artworks is a time-consuming process that requires considerable skill on the part of the photographer ....
"The court's insistence ... that a finding of originality requires a 'distinguishing variation' between the original and the copy ... creates a perverse incentive to produce second-rate or poor-quality copies. ... [But] the incentive to obtain copyright protection by producing a second-rate copy can be curbed by insisting that second-rateness is not a form of originality. ... So the court's decision may be correct after all."