Re: Images of Public Domain Images

     Both Mr. Baron and Mr. Panzer have done a superb job in setting forth the arguments for and against copyright in reproductions of art that is supposed to be in the public domain. Allow me to add a few comments:

Robert Panzer <bigbusie[_at_]aol.com> wrote:
>
> 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.

     While originality is the fundamental basis of current U.S. law, one can certainly envision a different copyright law based on a theory of misappropriation -- if you benefit from someone else's labor, you have to pay for it, period. While the resulting copyright law would be different from current U.S. law, it would not be true that "there is no point at all to copyright"; it would just be a very different point. And I would venture to say that "thou shalt not steal" is a lot closer to most laypeople's view of copyright than "thou shalt not steal original expression."

     You acknowledge that those who make master transparencies for reproduction ought to be compensated in some way. The question then becomes: how much is appropriate compensation? Should someone be paid only once for their labor and skill? Or should they be paid every time someone else benefits from it, even if no additional work is needed?

> 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.
[snip]
> 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.

     Try to see it from the other point of view. Museums are expensive things to maintain. It takes a lot of money to purchase art, to build a pleasing, climate-controlled facility in which to house and display it; to pay for conservationists to restore and preserve the art; to pay for curators and others who put together exhibitions, etc. The real question is: how are we as a society going to pay for all this? One answer is: pay for museums entirely with public funds, and ensure that any and all reproductions are made available to the public at cost. But in a climate where big government is seen as unpopular, that's not a politically acceptable solution. Instead, we see museums using merchandising to raise some of the money they need to fund their operations. And while I am generally a strong proponent of the public domain, I also am sympathetic to the argument that a little restraint on competition may be necessary to fund the preservation of this art for future generations.

[An aside: it seems to me that is exactly what the salvors of the Titanic are doing: they are attempting to use their right of access under salvage law to restrain competition in the reproduction of images of the Titanic. And their counter-argument is exactly the same: in order to encourage people to risk time, money and even life to salvage sunken ships, the law of the sea gives them a property right in whatever they recover. One can legitimately ask whether the same principle should be extended to cover intellectual property, if that is the best way to encourage salvage of this type.]

> 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 and may be at odds with other
> opinions - by a majority or minority.

This type of control is much more problematic for me. I agree that the museums shouldn't be controlling the context in which the reproduction of the work of art is used, because that smacks of censorship. Yet if one agrees with the argument that a copyright is needed to promote the preservation and display of art, then perhaps some sort of compromise, such as a compusory license, is needed?

> 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 to prohibit the use of flash photography, which can damage the art.] But if copyright should not be the incentive, then what other source of funding should we turn to? While I personally am a strong advocate of public funding for the arts, I recognize that it is not politically popular at the moment. I will continue to try to persuade others to change their views, but for now I have to ask: what is the second-best alternative?

> 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.

I don't disagree. In a perfect world, I would require the museums to make transparencies for reproductions to all comers at a minimal cost. But you have to consider what the effect of doing so will be in the real world. Would it have a big or a small impact on the ability of a museum to raise money through merchandising? How would museums replace those funds? How can we ensure that art in the public domain is available for all to use, while giving museums the financial wherewithal to preserve that art for future generations? I don't pretend to have the answer, but it seems to me those are the questions we should be asking.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Wed Mar 25 1998 - 20:02:14 GMT