RE: Re: copyright of reproductions

If the original work is in the public domain, the museum (or anybody else) should not be able to acquire any exclusive rights to such work. An author may only acquire a copyright in additional and itself original elements that the author may introduce by creating a derivative work of such public domain work. It is questionable whether a mere photograph of a public domain painting itself would be a derivative work because there may not be sufficient originality in taking a plain photograph or scanned image of a painting (no light, shadows, angle, position, etc.). However, if the work of art is a statue or three-dimensional work, this may be different. Any thoughts anyone?

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of Karl-Erik Tallmo Sent: Tuesday, May 25, 2004 1:36 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: copyright of reproductions

>The art museum in which I work has an agreement with a "replica" agency that
>has "patents and patents pending on various aspects of its technology." We
>have a contract with this company for them to reproduce several works of art
>from our permanent collection, all of which are in the public domain. The
>question has arisen as to whether or not we can claim copyright for the
>reproduction. The reproduction is on canvas and can be sized various
>percentages smaller than the original painting. From my understanding, the
>Museum cannot claim copyright for a transparency or digital image of a work
>in the public domain. Is this correct? Can anyone direct me to further
>resources?
>
>Thank you,
>
>Sarena Deglin
>Office of Rights and Reproductions
>Delaware Art Museum
>Wilmington, DE
>302-571-9590 ext.639
>302-571-0220 fax
>www.delart.org
>

It is an interesting question. Many libraries, museums and archives try to maintain this policy. The legal ground for it is, I believe, not crystal clear. Normally the ownership of a physical object does not include the right to control reproduction of its content. If you buy a painting at a gallery, for instance, you are not allowed (unless you get the artist's permission) to manufacture and sell postcards with that painting.

Personally, I think that when institutions behave like this it constitutes a sort of infringement of the public domain. It is serious since these libraries and museums at the same time do not allow the public to photograph these artworks and documents and thus create their own reproductions.

I think it is OK if the libraries charge for their reproductive work, but not that they claim copyright to the new copy. This copy is supposed to be as true as possible to the original and can therefore not be regarded as a derivative work.

Cf. the Bridgeman v. Corel case:
http://www.panix.com/~squigle/rarin/corel2.html

Karl-Erik Tallmo

-- 

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