RE: Advice sought for display of images on museum website

Hi Will,
Your list of questions is a great example on the variety of situations you can encounter concerning paintings (as well as other artefacts). The issue of "copyrighted " artefact, which is a new approach to monetize "Art work" , very much like patenting almost anything and will, if it continues to be pushed by "big business" (mostly US based!), destroy "fair use" and creativity.
Aside this there are already quite clear rules to look at. We have been doing a lot of research on this subject and our thinkings are (and this may need to be fully valitated regarding US laws, fair use practice in the US) to look at each situation independently of the successive origin and ownerhips of the artefacts.Our research as been build on the assumption that we are dealing with electronic digital)display of the artefact for "publication" (website, printing, reuse of digital files for derivative work
(including but not limited to "collages", partial re-use, etc)

1. Artists rights and his/her heirs: they keep the rights for "reproduction" of the original work within the 75 years (+ war years)
2. these rights could be sold or attributed by the artist himself (or the heirs) on a case by case basis, under a written agreement. The purchase of the artefact itself DO NOT transfer the artists rights to the owner (wether a museum, a private person or successive owners) and owners CANNOT transfert property of something they do not own in the first place, Therefore, if a museum can display digital images of his collections on a web site (and this is generally well accepted all over the world,) it do not allows the use of the digital file for other uses and reproduction of such on other websites and need proper authorization from the museum if they are replicated. However digital files MUST not be in a form allowing quality reprints or re-use (i.e use low definition thumbnail) . This of course do not apply if the author's death is before the 75 years rule.However this will still remain "questionable" under the "moral right" of the heirs if the use and transformation of the file is considered destroying artist reputation, vision , etc (see the current discussion on this subject in the list!) An other issue is the ownership of the digital file itself, which is also subject to copyright: - credit must be given to the photographer (creative work for lightening the artefact) and his/her right must also be taken into account. This do not seem to apply to scanned images where there is no "added value" by the photographer. However the question is "open" if the person creating the scanned image applies proprietary software and techniques to create additionnal informations on the artefact : in this case the new informations is considered a "property"! - To waive photographer credit requires a clear "work for hire contract" and the transfert of ownership. If the digital file is created from a phototype
   (scanning technology permit now to produce bery high quality digital files),
   photographers credit MUST be taken into account. This might be difficult as old, large phototypes are not fully documentes (name of photographer!) - if the digital file is used for commercial applications
   (reprints -including derivative works-, paid public display, inclusion in
   educational programs) the owner of the file (who paid the creation of the files) need to be part of the revenue stream (or accept to waive his/her ownership). as well as the owner of the copyrights (if it is not fallen in the public domain!) As you can see, the analysis of the situations you describe could be dealt with quite simply. Keep in mind, as a museum that your major issue is the relationship with the "author" and their heirs, when the digital file will be "displayed" (web, cd, dvd) and much more important when the digital file can be "re-used". If you like to exchange in more details, we can continue to discuss "off list": aminodier[_at_]gaod.com Alain

  -----Message d'origine-----
  De : CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]De la part de Real, Will   Envoyé : jeudi 6 avril 2006 06:30
  À : CNI-COPYRIGHT -- Copyright & Intellectual Property   Objet : [CNI-(C)] Advice sought for display of images on museum website

  At the risk of going over old ground (I am new to the list) I am hoping that some of you might have some advice for us. We are a museum that will soon be launching a public online collections searching application with which users can retrieve information about and images of items in our collection. Our collections are strongly weighted toward modern/contemporary.

  The first question is, to what extent would the use of copyrighted images in this context be regarded as "fair use"?

  Assuming the museum decided to play it safe and not claim fair use, what would we do in the following hypothetical cases? (which are considered "published" for copyright purposes, what copyright terms apply, are the works in the public domain, what is the risk of publishing images of these on the museum's website, etc.?)

1. A painting dated 1915, painted in the United States, purchased by the museum directly from the artist in the same year. The artist's death date is 1941.
2. The same painting, purchased by the museum out of an exhibition at the museum in 1918, in which all the works on display are for sale.
3. Same as 2, but the artist was French and the painting was painted in France.
4. A painting dated 1933, painted in US by a US artist (death date 1955), with no copyright notice on the work itself. The work is displayed at a commercial gallery in 1934 but is not purchased. It is eventually purchased by the museum from a commercial gallery in 1950. There are no records in the US copyright office related to the work.
5. Same as 4, but the painting has also been reproduced in an art magazine, with copyright notice, in 1949.
6. The museum commissions a work from a US artist in 1935 and the work is immediately accessioned into the collection. There is no language in the paperwork related to the commission specifying anything about copyright. The artist's death date is 1965.
7. A US artist, death date 1965, paints a portrait of a friend in 1930, and gives the painting to the friend, who in turn bequeaths the painting to the museum in 1970. There is no explicit copyright language in the bequest and no paperwork associated with the initial gift of the artist to the friend.
8. A US artist, death date 1941, paints a painting in 1895. The painting remains with the artist until his death. The artist leaves the painting to his son. The son retains the painting until his death in 1961. The son's estate holds a public sale and the museum purchases the work (no copyright notice on the work itself) in 1961.
9. An African artist (name unknown) carves a comb out of ivory. The date of the comb is unknown but is listed in the museum's records as 19th-20th century.
10. A Meissen teapot with no known date, 19th century. The company, Meissen factory, typically manufactures porcelain objects designed by its employees. The name of the designer in this case is not known.
11. Same as 11, but the name of the designer is known and the designer's death date is 1945.
12. Same as 12 but the designer's death date is unknown.
13. Same as 11, 12, and 13, but in this case the designer is not an employee, but an independent designer contracted by Meissen for a special project.

  Thanks in advance for any advice you may have

  William Real
  Carnegie Museum of Art Received on Fri Apr 07 2006 - 05:00:01 GMT