Gallery reproduction rights

The issue of institutions and their rights over works in their collections is something that mystifies me.

A gallery may charge reproduction fees for the use of their transparencies, for which they own the copyright; that is fair payment for a service, but I fail to see what basis in law they have for claiming fees for other assertions of rights.

1. I would like to know which international or local law/act or statute enables institutions to insist on the use of their photographic material simply because they hold the work? [It would be rare for them to have been assigned the copyright]
2. What legal right do they have to impose terms and conditions and fees without the use of their material, that is, the work is scanned from a book and may be in the public domain. [My understanding is that if the artist is decently dead -70 years USA/Europe, 50 years Australia- as opposed to recently dead, their work is in the public domain.]

eg a public domain work is two dimensional and reproduced in a multitude of books and the reproductions cannot be differentiated, [it can be difficult to identify the copyright owner of the photograph if neither the photographer nor the publisher have added anything of artistic integrity to the work], yet institutions may wish to approve the proofs, and have free copies of the publication in addition to a fee. Their intentions are obviously in the best interests of the artists in that they wish to maintain quality reproductions of the work, but what service have they provided to earn that right?

3. In the case of contemporary or recently dead artists most commercial galleries that I have dealt with are responsible and will ensure that their artist or the estate will receive a share of remuneration for use. Many institutional collections charge reproduction fees yet don't know the location of the copyright owner so that legitimate permission can be granted for reproduction. What share of that fee does a contemporary artist/estate get when their whereabouts is unknown? ie how can the legitimate copyright owner benefit financially from the transaction? It seems rather strange that the institution should get a fee when the artist doesn't. [I hasten to add that in Australia there have also been some wonderfully helpful individuals in our public institutions]

Art clearing houses are only a partial solution to the use of works of art; they impose their own conditions which sometimes do not recognise the half a world physical difference between Australia and the old world, and their own fees, but at least the artist/agent has appointed them to act. [I need to praise our new local art clearing house 'Vi$copy' for treating me as a real human being and education as something deserving special attention!!!]

If anyone has an answer to the legal rights rather than "possessive" rights of galleries over the reproduction of works in their collections - public domain and twentieth century - I would be grateful.

Baska Bartsch
Email: baska.bartsch[_at_]lmpc.edu.au
Phone:61 (02) 9715 8009
Fax:61 (02) 9715 8279
LMPC, 51 Wentworth Road, Strathfield, NSW Australia, 2135 Received on Fri Feb 07 1997 - 04:29:14 GMT