Re: Images of Public Domain Images

On 3/16/98, Robert Baron <rabaron[_at_]pipeline.com> wrote:
>
> Whether a photograph of a public domain work is itself devoid of
> copyrightable material is a question the answer to which often depends
> 1) upon the outlook of the answerer and 2) upon what he expects to find
> in such an illustration and 3) to what extent that finding implicates
> his understanding of minimal creativity.
>
> Speaking as an historian of images, while it is hard to deny that a
> photographer may wish to reproduce a work as faithfully as possible, a
> host of decisions are made by him and by those involved in the process
> of preparing such photographs for publication, which, while ostensibly
> technical in nature are, in fact, aesthetic judgements which encode
> personal and societal expectations. As a result, in broad terms, it is
> possible to look at the history of "documentary" reproductions and see
> in that history the kind of "stylistic" evolution or changes one
> normally wishes to chart in the creation of original works.
>
> Highly trained photographers make stylistic decisions consciously as a
> matter of course. People who operate scanning machines, too, make such
> decisions. Typically, photographers will tell you that they are making
> the reproductions look "good." And this word "good" is code for the
> result of their stylistic interpretation of the original. This is true
> even when they use the word "accurate" to describe the result of their
> work, for "accurate" is often used as a synonym of "good" in such cases.
> Even everyday snap-shot photographers make these kinds of stylistic
> decisions, but for them the results may be based on decisions made for
> them by manufacturers of cameras, film and processors, and are not
> exactly "personal" decisions, except inasmuch as they choose to buy one
> film or camera over another. In Disneyland/world even the choice of
> what to photograph is suggested by selected "Kodak" vantage points.
>
> In reality, the opportunity for a photographer to produce a "subjective"
> interpretation of his subject varies with the nature of the object.
> When a photographer takes as his subject architecture or sculpture or
> anything three-dimensional that is lit with light so as to create volume
> and space, or anything for which the photographer must choose lenses,
> angles, etc. the result is obviously an interpretation and is therefore
> obviously copyrightable. At the other end of this spectrum lie
> two-dimensional materials in black and white or mostly in black and
> white. The microfilms and graphic works cited in an earlier post in
> this thread and the contemporary reproductions of public domain printed
> materials all qualify as non-copyrightable (or nearly so) in my opinion.
>
> So the problem is to decide what minimal level of creativity qualifies a
> reproduction of a public domain image as copyrightable. The tradition
> in the world of publishing art is to accept all "reproductive" images as
> bearing copyright (until they, themselves, go into the public domain);
> but, as we have seen in this thread and elsewhere, this assumption is
> being challenged more and more. [See especially the paper Gary Schwartz
> (a well-known art historian and Rembrandt scholar) read at the College
> Art Association's Copyright and Fair Use "Town Meeting" (Feb 1998):
> http://www.pipeline.com/~rabaron/ttm/SCHWARTZ.htm .]
>
> Since, in theory, all reproductions imply selection and interpretation
> processes along the road from photographer to published image, to answer
> this question we must decide what minimal creativity and/or originality
> actually means or what is acceptable to our society.
>
> It is not sufficient to argue that the "intent" of the photographer or
> publisher is to produce a faithful non-inventive copy. This argument
> does not work because on one hand, as mentioned above, the technical
> decisions made to reproduce an image are really aesthetic decisions and
> may even be unknown to the photographer, himself; and, on the other
> hand, because the results of such decisions--the photograph or the
> printed page--are obviously not exact "reproductions" of the original--
> they are not simulacra. While you can reproduce Moby Dick faithfully,
> you cannot faithfully reproduce any painting photographically. The
> result will always be less from the point of view of the painting and
> paradoxically more from the point of view of the reproduction. There is
> a very interesting article on how copyright law misinterprets the
> meaning of "copy" and "reproduction" as applied to images. This paper
> was also delivered at the CAA Town Meeting. See Peter Walsh's "The Coy
> Copy: Technology, Copyright, and the Mystique of Images"
> (http://www.pipeline.com/~rabaron/ttm/WALSH.htm).
>
> The final decision on this matter will depend upon the interplay of
> political and social values. Do we want a strong and vital public
> domain in which the unique (i.e. singular) works of artistic creation
> may eventually reside? Or do we want to perpetuate the ability of the
> holders of public domain objects to control their interest in these
> objects by rewarding them, in essence, with everlasting renewable rights
> to control the use and distribution of those images society most wants
> to see. Do museums and other holders of images need the incentive given
> them by rewarding them copyright in their reproductive images so that
> they will continue to produce new, newly interpretive images of their
> works?
>
> If one looks at the generally unaccepted CONFU guidelines on the fair
> use of digital images, it is clear that those who drafted this set of
> rules believe that such "reproductive" images were copyrightable. As
> they denied educational institutions fair use in their reproduction,
> they insisted that every underlying image be cleared before placing such
> images in a visual resources collection. The ludicrous imposition of
> the resulting tangle of bureaucracy involved in clearing such rights may
> help readers decide the value of claiming copyright to reproductive and
> intermediary images.
>
> In a curious way, deciding this question is not unlike deciding where to
> draw the line for fair use. The answer lies in the result one wants to
> achieve. And there's the rub: whose result is going to be achieved?
>
> (For further discussion of this issue readers may wish to refer to my
> Introduction to "Copyright and Fair Use: The Great Image Debate." See
> http://www.pipeline.com/~rabaron/VR12-INT.htm#Making , especially
> paragraphs 46ff.)
 

These are very thoughtful ideas. I think Baron hit it right on the nose that society (through Congress or case law, I guess) must decide where on the continuum line we agree that a reproduction does not have sufficient originality to deserve copyright. I don't however, think this problem is as difficult as it may seem.

It is my understanding that copyright is awarded for a modicum of orginality in the final executed product, not in the process in which one takes to get there. When a museum, for example, produces a reproduction quality transparency of a two dimensional work, its purpose is to reproduce the work with as much fidelity as possible. In fact, it is to mimic the work as perfectly as possible within the limitations of the technology available and the skills of the photographer. And while I agree with Baron that it is not the intent which determines whether there should be a new copyright, the intent leads us to recognize that the differences between the original work of art and the transparency are due to the nature of the technology and the skill of the photographer, not the subjective (which to me does not mean original) creativity of the phtotographer/duplicator. Believe me when I say that there is consensus on what makes a good quality, desireable transparency. It is not interpretation. It is the ability, the skill involved in reproducing with exactitude. Baron mentions photographers that say "...they are making the reproductions look good. And this word "good" is code for the result of their stylistic interepretation of the original..." The word good can only mean accurate. They are certainly not making the work look better. If they do they should be fired. And even then, it would take some major changes to convince me that the new work should have its own copyright. Of course the final execution will be different, but this is beacuse of the change in the media, and hence, a result of the limitations of the new media. If I am not mistaken, the law says a change in media does not automatically bring with it a new copyright. Whenever you change media, by definition there will be differences, and such differences are due to, perhaps, the subjective nature of the human behind the process. I do not think however, that copyright is awarded just for the sake of difference, especially difference defined by non creativity. It is awarded for originality. I think we must define orginality by useing the word creativity. Otherwise, there is no point at all to copyright. When I look at a transparency, especially one produced for the purpose of being reproduced, I see no difference between it and the original except for the aspects defined by the equipment and skill of the photographer. The subjective aspect is defined by the fact that humans are behind it and must therefore make certain choices in order for the copy to "look" as much like the original as possible. This is a skill not an act of originality. Ultimately, I think more or less, that a basic test resolves this problem relatively neatly. If you show 100 people a painting and then show these same people a color transparency of the painting, and ask "Is this (the painting), this (the transparency)?, and the large majority say yes, then you are not talking about originality. If our interpretation of originality in the world of art is going to be so low that only experts and lawyers can determine (or argue about) what deserves copyright than we have a big problem. Copyright loses its meaning a value. There becomes no balance between the rights of copyright holders and the rights of the public.

I don't think copyright law was written to protect every little change in each form of reproduction, especially those primarily governed by technology and skill. Otherwise, all reproductions (except those performed by robots? But humans are behind them too) can have their own copyrights. If I make a photocopy of a photocopy of a photocopy, do I have three potential copyrights? I can, in fact, adjust the darkness. It is all a question of degree. In my opinion, if a museum can keep a public domain work from being reproduced by controlling access to reproduction quality images of it and by then claiming copyright in their "reproduction", then they get a perpetual copyright. This is not what copyright is about or should be about. Yet this is exactly what is happening. Furthermore, museums often turn down requests for reproductions of public domain works in their collections because, as owners of the original, they deem themselves "trustees" of the work. They feel it is their duty to preserve the "diginity" of the art and hence,only authorize that which they deem appropriate. Of course, what they deem appropriate is only their opinion a may be at odds with other opinions - by a majority or minority. And quite common these days, museums do not release imagery simply because they want to exploit the art in their own merchandising operations. They are using control of access to control copyright and then restrain competition.

Baron asks, "Do museums and other holders of images need the incentive given them by rewarding them copyright in their reproductive images so that they will continue to produce new, newly interpretive images of their works?" This seems a strange question to me. Newly interpretive? This seems to imply that there is some value in their new "interpretation" which we want to encourage. There is not. They are only doing the work of making a reproduction available in a format that can itself be reproduced. I don't want the museum to interpret. I want them to copy. We do not look to the museum for interpretation, we look to them for access in a fortmat that is practical for reproduction into other media. If we could, we would put an exact duplication of the original in a book. But we can't. At least not yet. The incentive to make available copies should not be copyright in the non-original copy. In fact, as public facilities, they should allow people to bring their cameras with tripods into the museum so they can shoot the public domain works themselves. Admitedly, for practical puposes they may want to limit this to some extent, i.e, certain hours on certain days. And it is only appropriate that for the convenience of the public (mostly publishers) that they provide their own transparencies. But then they must charge a reasonable fee for it. For a museum this should be cost plus a small profit. That profit combined with their non-profit status and mission to provide access the the public to their art is the incentive. If their fees are high, they become tantamount to a rights fee. The result is that the fees and control of access create all the trappings of copyright when there is not such a right nor should there be.

As you can see, this is a topic near and dear to me. As Executive Director of VAGA, the Visual Artists and Galleries Association, an organization representing copyrights for thousand of visual artists and estates of artists, this is a big concern for us and the publishers and other users of art that contact museums to obtain imagery. This is a topic discussed in this forum in the past. I am glad that it has come up again. For while, in the big picture world of copyright (film, music, etc.), this may not be a big money deal, in the world of art it is a big deal.

Any comments are most appreciated.

Robert Panzer
Executive Director
VAGA
521 Fifth Avenue
Suite 800
New York, NY 10175
212 808 0616
fx 212 808 0064
email office: rpanzer.vaga.[_at_]erols.com
emai home: bigbusie[_at_]aol.com Received on Wed Mar 25 1998 - 05:14:55 GMT