Re: R.M.S. Titanic

On 98-04-02, Terry Carroll <carroll[_at_]tjc.com> write:
>
> On Mon, 30 Mar 1998, Robert Panzer <bigbusie[_at_]aol.com> wrote:
>
> On 98-03-28, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > On Fri, 27 Mar 1998, Robert Panzer <bigbusie[_at_]aol.com> wrote:
> > >
> > > On 98-03-26, Terry Carroll <carroll[_at_]tjc.com> wrote:
> > > >
> > > > I suspect that the case is not so much with regard to an
> > > > intellectual property right as it is to physical access;
> > > > i.e., RMST's "exclusive right to photograph Titanic" may be
> > > > akin to a museum's exclusive right to photograph its holdings.
> > >
> > > What statute or case law says a museum (particularly a public one, as
> > > most probably are) has exclusive rights to photograph its holdings??
> >
> > I'm not aware of any such statute or case law. That's why I wrote "I
> > suspect that the case is not so much with regard to an intellectual
> > property right as it is to physical access."
>
> Now I am more confused. Maybe I am misinterpreting what you
> wrote. From your March 26 post, the way you worded it, it sounds
> to me like you are saying that museums have an exclusive right to
> photograph their collections.
>
> A museum has the right to exclude patrons from physical access to its
> holdings. It can grant access conditionally, including the condition
> that the patron not photograph the holdings. Thus, while there may be
> a de facto exclusive right to photograph the holdings, it's not based
> on an intellectual property right; it's based on physical access.

Is there any case law on this? I would appreciate any cites. This issue seems to keep coming up on CNI and I seem to be the one who continues to be voiciferous about it. I hope I'm not starting to sound like a broken record?

It seems as if the question that is being asked is, which is stronger - copyright or property rights? I wonder this topic has ever reached any court. I believe that property right should not be used to subvert copyright, or the reverse, be used to reinvent a copyright. So, if a museum can control access to a work in its collection, then what happens if you want to make a reproduction of a public domain work in the the museum's collection and the museum deems the use "innapropriate"? If you can't get access to the image either by renting a transparency for a reasonable fee or by being allowed to set up a tripod and shoot (at limited and specified times perhaps), then essentially the musem controls the right to reproduce the work by controlling access to it. In other words, access creates a de facto copyright for the musuem! This problem seems even more egregious when you consider the public nature of most museums and the particular benefits and allowances they receive from municipalities, states and the Federal government. Furthermore, are we to allow museum administrators to decide what is or isn't an appropriate use of art? This is censorship at its worst. You can't say public domain without saying "public". Perhaps the term should be changed to "museum domain".

This problem, of course, is not limited to public domain works. VAGA, of which I am the Executive Director, is a copyright collective representing thousands of American and foreign artists. A few years ago, a publisher of a math textbook came to us seeking rights to reproduce a work by a VAGA represented artist on the cover of the book. The artist was all for it. Most artists would be. The use is relatively benign and artists typically approve this type of use as it puts art into a non-art context and allows it to be seen in a different light - one perhaps with fewer preconceived notions from the viewer. In fact, the use of fine art to illustrate book covers is a long tradition between publishers and some of the most "serious" (not that it should matter) artists of our time. The publisher also sought a reproduction quality image to shoot from. Unfortunately, the work had been created some years ago and no such image was available from the artist or his gallery. VAGA referred the publisher to the museum which owned the work, with the idea that we would clear the artist's rights and the museum would provide the image. Yet the museum turned the publisher down stating that it would only release the image for reproductions in an art context! Even for museums, such a stance is highly unusal. Museums are more likely to deny advertising uses or certain types of merchandise or uses that compete with their own merchandising plans (current or way in the future) This of course, brings up both copyright and unfair competition issues, but we will leave unfair comp to another time. The long and short of it is, is that an artist was denied the right to assert his own copyright and reap its benefits because the current owner of the work denied access. The artist essentially cannot reproduce the work he created!

This is not a once in a while thing. It happens everyday in the world of museums and publishers and artists. It has been going on for years. And the largest museums with the largest merchandising programs, including many in Washington supported by taxpayer dollars, generally have the worst histories in respecting both the law its intent. For many, their goal is to find every conceivable way they can assert control over the works in their collection. It has often been forgotten that a museum is essentially a repository for other people's creativity and would have no existence with out it. This is not to diminish the importance of these instituions and the recognition that many an artist career has been made by museums buying and exhibiting an artist's work. But to seek all manner in which to take from the artist any rights he or she may have seems to deny what should be, at the very least, a mutual respect, and at best a recognition of the intent and meaning behind copyright. Despite this, there are many museums that take the high road. With each passing year, with an increase in staffs more educated about copyright and artists' rights in general, museums are demonstrating trend toward greater respect for the artist. But this notion that access and property is everything and all else is subservient to it, seems particular to America as compared to other western societies. And some, I would dare say, believe in a general sense that it is the biggest problem we have. I am not now trying to change the world order. Maybe that should be my next project? Lets just not forget what is at the very heart of copyright from a human nature (natural law) point of view.

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
email home: bigbusie[_at_]aol.com Received on Fri Apr 03 1998 - 03:53:59 GMT