Re: Greetings, I also am not a lawyer

On Mon. Oct 20 1997, Joseph Pietro Riolo <riolo[_at_]voicenet.com> wrote:
>
> On Fri, 17 Oct 1997, Alison Pinsler <alisonp[_at_]fox.com> wrote:
> >
> > Greetings, I am not a lawyer, so please bear with me. If there is an
> > article and an image from a 19th century magazine, and the magazine
> > is still being published today, is it possible that an article and an
> > image from an 1865 issue could still be protected?
>
> I am not a lawyer, too.
>
> You have to tell us more details in order for us to make an appropriate
> response. I want to know where that 19th century magazine is (it is in
> a museum or you own it), the name of the magazine, whether the magazine
> is in paper or microfiche, whether the image is a trademark, and more
> importantly, what you are going to do with the article and image.
>
> Generally, you can copy the article and image without problem. Note
> that I said "generally". There are many exceptions. If the magazine is
> in the museum, you still have to get a permission from the owner of the
> museum, even though the magazine is in the public domain. You are going
> to be in a lot of trouble if you plan to copy the image to, say, the
> book cover because it will mislead the customers in thinking that your
> book is printed by the publisher that is still printing the magazine.
> Same thing for the home page (or the first page) in your web site.

I am also not a lawyer, but I sure interact with them often, especially museum lawyers.

I am not eactly sure what you mean by "If the magazine is in the museum, you still have to get a permission from the owner of the museum, even though the magazine is in the public domain". Since the magazine is in the PD, I presume you are saying the museum has the right to control reproduction of the magazine by controlling access to it: the magazine (at least this copy), after all, is the museum's property. Hence the museum controls reproduction rights (aka copyright) by controlling access. Such control could be total and complete if the museum is the sole owner of a reproducible copy of the magazine, or for that matter, any object, including a unique work, such as a work of fine art.

An interesting question then arises. Is this the intent of the copyright law? Should owners or access controllers be given the benefits (potentially perpetual) associated with copyright? In particular, should museums, which are usually non-profit, often publicly supported institutions, be able to assert this control.

As Executive Director of VAGA, the Visual Artists and Galleries Association, an artists' rights organization and copyright collective, you can probably imagine that my response is that museums should not have such control. And to us the problem is not just with public domain works. It even extends to works still protected by copyright.

Here is an example. An artist creates a work in say, 1980. A reproduction quality transparency is made by the artist at that time. The work is sold by the artist to a collector. 17 years later, the collector dies and, by will, the work is given to a museum. The artist, still living (not that this necessarily makes any difference), then receives a request from a publisher to reproduce the work on the cover of a math textbook. The artist is delighted; the idea of her art (in this case a work with a large number 2 in it) appearing in a non-art context is wonderful to her. It will expose the work to an audience in a new way. Unfortunately, her transparency has lost its quality in the 17 years since it was taken. So she refers the publisher to the museum with the idea that she will license the publisher reproduction rights and the museum will provide the image. She figures that the museum will charge some sort of rental fee which would cover the museum's costs and perhaps a nominal profit.

Three scenarios can then occur. The first, and best for her, the copyright holder, but not the most common result, is that the museum does just what the artist hoped for and everybody wins. The second, and most lilkely, is that the museum provides a high quality image to the publisher but charges a fee (in the form of one charge or separate rental and rights fees) that is often close to, at, or over the publisher's budget for the use (let us presume that the publisher's budget is somewhere around industry standard). There is little or no money left in the budget for the artist, the creator and rights holder. The third scenario, one not as uncommon as you might think, is that the museum refuses to provide the image, and for any number of reasons. Two common reasons: the museum deems such use "inappropriate" and, the reproduction would be in competition with a use the museum itself may want to make of the work. Yet aren't these the very rights reserved to copyright holders? End result, the artist loses control of rights, potential income and exposure.

These are issues VAGA is dealing with right now with prominent American institutions. It is not only about copyright. It is about unfair competition, anti-trust, censorship, and ethics. I am wondering if there are any legal cases that have adressed the issue of access and copyright? All comments on this subject are eagerly sought.

Bob Panzer
VAGA
bigbusie[_at_]aolcom Received on Wed Oct 22 1997 - 04:24:30 GMT