Re: Photos of National Gallery Paintings

On Mon, 3 Jan 2000, Don Roemer <droe2[_at_]earthlink.net> wrote:
>
> On Thu, Dec 30, 1999, Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > On 12/22/99, Don Roemer <droe2[_at_]earthlink.net> wrote:
> > >
> > > On Sat, Dec 18, 1999, Robert Panzer <bigbusie[_at_]aol.com> wrote:
> > > >
> > > > I think Robert Baron is correct in his assertion that photographs
> > > > of public domain art held by governmental or quasi-governmental
> > > > institutions (which are staffed by government employees) are in
> > > > the public domain. Further, I believe the Bridgeman case would
> > > > apply even if the above would not.
> > > >
> > > > This copyright question is crucial because many museums are
> > > > interested in perpetually controlling copyright in the pd works
> > > > they own by controlling access to reproduce the works. First,
> > > > they usually will not let you set up your tripod and shoot the
> > > > work at the museum. Second, by claiming copyright in their
> > > > photo of it, and then contractually binding the borrower of the
> > > > photo (presuming their photo is the only good one on the market
> > > > -- which is not uncommon), the museum controls all reproductions
> > > > of a pd work. I believe this is an unethical and possibly
> > > > illegal activity. The question is, which is stronger, the
> > > > property right or the right of the public to assert its public
> > > > domain rights?
> > >
> > > I'd like to hear your theory of law as to the practice being illegal.
> >
> > By controlling all access to the public domain elements in their
> > works, museums may be guilty of monopolistic practices, restraint
> > of trade and acting contrary to other fair market legislation.
> >
> > The only way out of this dilemma would be to grant reasonable access
> > to works for private photography or to uphold the rights that the
> > Bridgeman decision seems to be establishing. It is unlikely that
> > museums will ever grant unfettered access to their works, from a
> > security standpoint and out of their responsibility to preserve
> > and safeguard the physical condition of their holdings. In that
> > case, in my opinion, Bridgeman doesn't go far enough. In one form
> > or other the public is owed the public domain. When a public domain
> > work is purchased or when a holdings fall into the public domain,
> > not the physical work but the artistic and creative essence of that
> > work becomes public property. Think of the public interest in the
> > public domain as an easement granted on private property.
>
> You certainly have a broad view of "public domain." A rather
> socialistic one at that. Public domain shouldn't mean that the
> public owns it, but rather, as the law allows, there is no longer
> any copyright in the work.
>
> In your view, if I had a newly discovered Monet hanging in my
> hallway that anyone and everyone should have access to it --
> because it belongs to the "public." NOT!!!
>
> If I were to find a theory in your missive I suppose it would be
> "Let's kill Don and steal his s**t" Thankfully the USA was founded
> on [private] property rights and hopefully will stay that way for a
> while longer.

Mr. Roemer says, "Public domain shouldn't mean that the public owns it, but rather, as the law allows, there is no longer any copyright in the work." While I believe that this may largely be a question of semantics, I might agree with him that under certain circumstances, individuals, and maybe privately held collections, could not be compelled to provide access to their works. Public institutions, however, are different. They are often tax-exempt, obtain funding from governments and the public, and often receive unique benefits and exemptions from their communities. The key word here is "public". A public institution serves the public interest and obtains certain benefits. These benefits should not include the right to prohibit the public's access to "public" domain works. A museum's stewardship to promote the arts should not include the right to control the arts.

Robert Panzer
VAGA
<bigbusie[_at_]aol.com> Received on Tue Jan 04 2000 - 01:15:04 GMT