Re: State Susceptibility to Suit for Copyright and Patent Infringement

On 98-07-31, Dan L. Burk <burkdanl[_at_]shu.edu> writes:
>
> It would be, but probably isn't. Setting aside the merits of the suit
> (Raphael long ago fell into the public domain)

It doesn't work this way. Museums have a right to control activiities on their premises. Some forbid cameras altogether, and if you want the photo you intend to reproduce, you can use their photos under their terms. Some allow hand-held cameras to be brought in under certain conditions, virtually always with the proviso that you may not reproduce any photos you take. The reason usually given is that you may take a poor quality photo, and the museum wants only high quality photos (its own) used for reproduction.

The permission fee is being paid for the photo, and what's a person to do? An illustrated art history book titled <Art before 1900> will entail a fee for just about every photo, irrespective of the age of the art. I suppose with a building--Chartres Cathedral--one couldn't be stopped from taking one's own exterior photo. But it isn't always cost-effective to take a trip to France just to avoid paying a couple of hundred dollars for permission to use someone else's photo. I know a person who travels around Europe photographing carvings on the backs of pews in medieval churches. She uses the photos in books and articles. Churches aren't as slick as museums, and I don't think it's occurred to them to ask her for money or restrict her activities.

Even if museums had to allow people to reproduce their own photos, there's another virtually insurmountable problem. It's nearly impossible to take professional-level photos of works of art displayed in museums unless one can clear the people out of the gallery, pull down the window shades or work at night, bring one's own lights, and bring a substantial tripod. This can be arranged with some museums, but expect a substantial fee for after-hours use of the premises, and that the museum will want to control the use of the photos you take. Extra charges will be involved if objects have to be taken out of a glass case in order to get a better photo, if a painting hung high on a wall needs to be moved down to eye level so that it doesn't come out looking like a mis-shapen parallelogram, etc. etc. etc.

I know a person who wanted to photograph all the illuminations (pictures) in a medieval manuscript. One of the requirements of the museum that owned the manuscript was that he couldn't touch the manuscript, and had to pay a museum guard $75 per hour to turn the pages for him. Had the manuscript been unusually fragile, my guess is that a guard might not have been good enough, and curatorial personnel would have turned the pages at a proportionately higher cost. Or permission would not have been granted.

Possession is nine tenths of the law. It isn't unusual for a museum to absolutely forbid reproduction of any photos of work in a special exihibition they hold--they don't want anyone else's book to compete with the illustrated catalogue they're selling themselves.

The situation is similar to that of translations of literary works. Plato is in the public domain. Last year's English translation of <The Republic> isn't. If I decide to do my own translation, I have to deal with the institution that owns the physical copy of the manuscript. There may be fees involved, and I can't assume they'll allow just anyone to touch it or have photocopies. I suppose the Dead Sea scrolls are in the public domain. That doesn't mean I can have unrestricted access, and I can't have access at all unless the owner or holder allows it.

Because possession is really the issue, nothing can stop the City of New York from charging me $5 or $10 for a photocopy of my birth certificate, which is on file with them. They aren't required to let me take any of "their" records off the premises, where I can get a photocopy for five cents. Students pay school to get transcripts of their grades, and the courts seem to be the only places exempt from this soak the seeker policy. When filing a paper with a court, it doesn't cost anything to have the clerk time-stamp a duplicate copy for one's records. But that's only the courts. If I want a photocopy of a paper pertaining to my house stamped or certified, to show that it actually came from the department of buildings, that will entail a fee. Other agencies, unlike the courts, don't have public photocopy machines on the premises where people can make their own photocopies for, say, twenty-five cents per page. Every item I've named in this paragraph is ostensibly a public record, and not under copyright. I have a right to see it, especially if it pertains to me. Getting a copy is another issue, even if I need the copy to file with another public agency.

Incidentally, I recently ordered a photocopy of a five page journal article from a large library. Beyond photocopying costs, it came with a $30 "reproduction fee" tacked on, though I have no intention of reproducing it and just wanted to read it. This is ostensibly to comply with "changes in the copyright law," though I doubt any of the money is going to either the living author or the journal.

I even doubt there was any change in the law that mandated their raising their fees--"changes in the law" is being used as a pretext. What actually occurs in the marketplace is not a mirror of copyright law -- one has to add in what large institutions think they can get away with.

Pat Sloane
<patsloane[_at_]aol.com> Received on Fri Jul 31 1998 - 14:59:09 GMT