Re: Photos of National Gallery Paintings

On Thu, Dec 30, 1999, Robert Panzer <bigbusie[_at_]aol.com>
>
> On Wed, 29 Dec 1999, 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.
>
> Public domain is the right of the public to use creative works which
> would, at an earlier date, be protectable under copyright.

True, to a limited degree.

> If say, a museum, can keep the public from asserting its public
> domain right by controlling access to the only copy, then the museum
> creates what is essentially perpetual copyright for itself.

That, with due respect, is nonsense. If the work is on display then anyone with a bit of talent can copy it. They may not be allowed to fondle or handle the work, but so what? It doesn't belong to the public. All that has happen is that there are no longer any penalties for copying or duplicating a previously protected work. Period! Nothing else has changed.

> While I do not believe that the 1909 or 1976 statues directly address
> this issue, I cannot imagine that the intent of our congress was to
> allow this to happen;

I do. The Congress which wrote the original Constitution as well as the Congress who "refined" the copyright laws over the years made it very plain.

> there is no point to copyright if an owner of a copy (sometimes the
> only copy) can thwart the copyright holder's right to assert copyright.
>
> I am also aware that in a second ruling after the famous work for
> hire case which involved a work of art, Reid vs. Committee for Non
> Violence (CCNV), a judge ruled that CCNV could not deny Reid access
> to the work of art in order for him to make copies.

I am not familiar with that case and a Net search yeilded me nothing.  

> The access vs copyright issue is somewhat similar to the debate going
> on about fair use and the Internet: If Web site controllers can keep
> fair users from downloading content, then there can be no assertion
> of fair use (I think there is going to be some legislation on this).

Kind of hard to keep anyone from "downloading" as everything you see on a Website get downloaded to your drive or memory and then displayed on your monitor. Maybe I am not [correctly] following your thoughts on this. I do know that some images which can be viewed on your monitor can be difficult (but not impossible) to "save."

> I believe the same argument applies to public domain.

I don't. If you want an unprotected work in my posession then negotiate for it. It's not yours nor anyone else's to do with as you please.

Don Roemer
<droe2[_at_]earthlink.net> Received on Tue Jan 04 2000 - 02:35:05 GMT