Re: Publ.Infringement+money for old rope

Bob Panzer <bigbusie[_at_]aol.com> wrote:
>
> Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > Without our scholar claiming fair use, and accepting a museum's
> > copyright in its reproductive photographs, how does he go about
> > reproducing the alleged infringing work? >>
>
> Your scenario presumes the museum has copyright in its photographic
> reproduction of a work of art. An important issue here is the
> legitamacy of a copyright of a photograph of a work of art. Assuming
> the photo is of a two dimensional work of art (by far most likely), it
> seems spurious to believe that the photo qualifies as a derivative
> copyright. There is not sufficient orginality in the photo to warrant
> a second copyright. It is a slavish reproduction defined by the
> technical parameters of photographic equipment and the skill or
> craftsmanship of a photographer. Nothing original has been done;
> there is only a change in media.
>
> If the underlying work is protected by copyright by another rights
> holder, they must be contacted for permission. If it turns out
> however, that the museum is the only holder of a good quality photo
> reproduction, the museum essentially holds potential licensees and
> even the true rights holder hostage by controlling access to the
> image. Can a museum do this (especially one funded, even partially,
> by the public)? And if the original work is in the public domain,
> the museum is creating a perpetual copyright for itself by
> controlling access. This is a big issue right now between copyright
> holders and museums.

I agree that this is a big issue; it also means that the person clearing copyright for use in publications has an uphill battle in terms of identification of the relevant rights holders. [People rarely seem to mention the practicalities here] It is hard enough to trace copyright for someone who is indecently dead - less that 50 years in Australia - let alone within the 70 years that now constitutes someone who is "decently dead", in Europe and the USA. If it can be difficult to track down an estate during the lesser time frame, and fees are going to "intermediaries" who REALLY benefits from the extra 20 years? Are the institutions getting 'money for old rope'?

I posted the following in January with only 2 respondents; following Mr Baron's lead I will try again as the issue is pertinent in this thread. On 1/1/97 Tracey Marks queried the possibility of scanning art from books, I am also interested in the associated issue of the rights of galleries to impose conditions and fees on publications containing works that they hold.

> Re: using classical art on the Net (b) scanning art from books:

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.

If that public domain work is two dimensional and reproduced in a multitude of books and the reproductions cannot be differentiated, ie neither the photographer nor the publisher have added anything of artistic integrity to the work, it can be difficult to identify the copyright owner of the photograph. If the image is digitised, and therefore recent, it should be easier to identify the owners of the reproduction, but who would want to use a work emblazoned with a copyright statement that interferes with the integrity of the work? [See the Wallace Collection in London].

The owner of a published edition does not own the copyright of a Leonardo it reproduces any more than does a gallery holding the physical object. 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.

If the work is three dimensional, a photographer may have added something of artistic integrity to the work and will have their own identifiable copyright in the photograph. Tracking a peripatetic photographer who isn't registered with any professional organisation for permission is another matter!

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

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]; eg that they 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?

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 and deadlines which sometimes do not recognise the half a world physical difference between Australia and the old world, but at least the artist/agent has appointed them to act. [I need to praise our 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
Copyright Officer

Email: baska.bartsch[_at_]lmpc.edu.au
Phone:61 (02) 9715 8009
Fax:61 (02) 9715 8279
Learning Materials Production Centre (LMPC), 51 Wentworth Road, Strathfield, NSW Australia, 2135 Received on Mon Jul 14 1997 - 07:14:49 GMT