It can be read online at
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm

[...] http://www.technicallylegal.org/de-fud-photographs-of-paintings-and-twit203/ [...]

The most recent (published) opinion in Bridgeman I found was Bridgeman v. Corel, 25 F.Supp.2d 421 (S.D.N.Y. 1998). If you have a more recent opinion, please share.

According that that opinion, the court used U.K. law to determine the copyrightability of the works, and applied U.S. law to the issue of infringement based on a situs of infringement analysis. See id. at 426-427. The court determined the images to be uncopyrightable under U.K., but continued to conduct an infringement analysis under U.S., assuming arguendo, that the works were in fact copyrightable. Under the second prong of infringement analysis, the court found the allegedly infringing reproductions lacked substantial similarity to the plaintiff’s works. Id. at 428.

The Berne Convention is silent on the applicability of different standards to the elements of copyright ownership. However, the dichotomy of choice of law and infringement analysis, at least in the U.S., is fairly apparent under Itar-tass v. Russian Kurier, 153 F.3d 82 (2d Cir. 1998). This case lays out the separation of copyrightability determination and infringement analysis. Based on my reading of the Bridgeman opinion, the court applied U.S. and U.K. law separately when analyzing the plaintiff’s copyright claims.

I agree that the jurisdictional issues will likely be a hot point of debate. I am not sure how the U.K. court will treat choice of law to the issue of copyrightability; but, if it is similar to the U.S. analysis, it would seem that U.K. law would likely be applied.

Certainly, as you note, if the case gets kicked over the U.S. courts Bridgeman holds much more water on the issue of copyrightability. Choice of forum is a very relevant and significant factor in this case based on the split between the sovereign jurisdictions.

Good points all around.

On a side note, I would be interested to hear what the U.K. courts might have to say on the issue of copyrightability.

The revised judgement was that UK law was *not* the applicable law, the applicable law was U.S. law. The judge then held for Corel, both under U.S. law, and (obiter) under UK law.

If this case comes to trial, the key question is going to be jurisdiction. As it involves a corporate entity suing an individual, normally that would mean that venue would be the individual’s — ie somewhere in the United States. A U.S. court is then likely to look very favourably on the argument in Bridgeman, and decide that the applicable law is that of the United States — in which case Mr Coetzee would appear to be in the clear.

If the UK court refuses to cede jurisdiction, and finds against Mr Coetzee on the basis of UK law, it seems far from clear that any such judgment would be enforceable in the United States.

Mr Coetzee’s lawyers could argue:
* That the UK courts had no personal jurisdiction over Mr Coetzee.
* That, under U.S. law, the UK court had no jurisdiction over the subject matter; and
* That the judgment was repugnant to the public policy of the state where enforcement was sought (ie the United States).

A U.S. court might be expected to find those arguments considerably persuasive.