RE: Photographs of Public Sculpture

Whether a work is in the public domain and whether someone may have access to it are two different questions invoking two different areas of law. Suppose a public domain work hung in your living room. Would you still believe that every member of the public had the right to come in and photograph merely because it is in the public domain? If not, then, at a minimum, you have to distinguish, in your analysis, between the reasonable obligations of public museums and those of private museums.

Robert C. Cumbow
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-----Original Message-----
From: Bigbusie[_at_]aol.com [mailto:Bigbusie[_at_]aol.com] Sent: Sunday, October 22, 2000 4:04 PM
To: Multiple recipients of list
Subject: Re: Photographs of Public Sculpture

In a message dated 00-10-20 23:02:33 EDT, you write:

<< I have a related question -- if a museum holds an original statute by Michelangelo, for example (someone long ago deceased), can a visitor to the museum take a photograph and display it without asking permission from the museum? Thank you. Pat Roshaven
 <<<<<  

 As a copyright matter, yes. As a practical matter, maybe not. As a practical matter, the museum can prohibit you from bringing a camera into the
building. They can require you to agree to their terms and conditions before
entering the building. They can prevent you from returning if you violate those terms and conditions. [All of this assumes the museum isn't required by law to allow access without conditions.] So, you may be better off just asking permission. For non-commercial purposes, you may get it.  

 For me, the interesting questions are whether you could force the museum to

allow you access, and whether the museum could enjoin you from publishing a photograph taken in violation of the terms and conditions. I think the answers are probably no and yes, respectively; but there are intriguing (and,
to me, persuasive) arguments to the contrary.   >>

My intriguing argument to the contrary (for those of you who have heard this,
ad nauseum, in the past, my appologies).

One has to wonder why a museum would even want to restrict people from shooting public domain works? The only thing I can think of is that the museum wants to use the art for its own interests or keep others from using it in a way that the museum deems innapropriate. But who gave the museum the
right to say what is and isn't an appropriate use of public domain art? The

reason the work is in the public domain is so that the "public" can use it, fool around with it, change it! Isn't that the very essence of public domain? The whole thing smacks of censorship otherwise.

The museum is using control of access to create a de facto copyright for itself. If we truly believe in the "public" part of public domain then this

is a problem. The question ultimately becomes, what is a more important, the
right to control property/privacy(?) or copyright? I believe that if the museum is a public institution, which receives economic and other benefits from Federal, state and local governments, then unfettered access to shoot the art is required. Private museums would be a tougher question.

Robert Panzer
Executive Director
VAGA (Visual Artists and Galleries Association)

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