Re: Fine Art Reproductions

On Mon, 05 Apr 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> I would welcome correction from someone who knows, but I seriously doubt
> that Warhol asked permission. Why wasn't he sued?

Tyler:

I have the answer I received from the Warhol Foundation to this very question, and as soon as I'm back in the office and can find it, I'll post it.

> I conceive of Bridgeman as being a trade-off for permitting private
> ownership of the original with no right of access to the public. Since
> the public is not assured of the right of access to the original that
> is needed to reproduce the original faithfully, they must be able to
> copy the photograph in order for the public domain status of the
> original to have any meaning. I might be willing to let the museum
> own a copyright in its own photo IF it granted access to any member
> of the public to photograph the original painting without charge (or
> with only a minimal one-time charge to cover its expenses in providing
> access), and assuming it would be possible to distinguish between use
> of the museum's photo and use of a photo taken by anyone else. But
> that would be a very different copyright scheme from the one we have.

What about public domain works of art that are owned by private individuals? The concept of public domain intellectual property doesn't give anyone right of access to private property, in any setting, to the best of my knowledge. Nor the right to photograph it, without the owner's consent. Can you imagine someone knocking on your door and demanding to photograph your Poussin or your medieval manuscript, claiming "public domain"?

Museums, like mine, traditionally license copyright to their photographs of the works of art in their collections in order to earn income without which they cannot continue to preserve, restore, research, interpret, publish and exhibit those works.

Photographing works of art is a costly business. Besides the specialist photographer, film, and developing, the man-hours of professional staff involved must also be included in the total cost: art handlers who remove the painting from (costly climate-controlled) storage or (costly climate-controlled) display and bring it to the studio and remove it from its frame, conservators who check the lighting to be used and vet it vis-a-vis the painting for UV, heat, and light absorption levels, curators who discuss the painting with the photographer so that he/she understands the importance of certain elements, colors, shadows, textures, varnish, etc., and the visual resources staff who coordinate all this, oversee the work and post-production, as well as re-framing and return to storage or display. Then there are the times we have to re-photograph again and again, using different photographers or different films, because the photographs didn't come out satisfactorily.

To put it simply, we cannot afford to photograph a work in our collection unless we can hope to get a return on that investment.

Okay, you say, damn the expense: close the studio, let all those staff get on with other things, and just let everyone photograph at their expense. There are severe preservation and security problems, however: museums are, after all, charged with the safekeeping and preservation of works of art, and constant handling and exposure to light (especially in the case of prints and drawings) puts them at risk. We don't go to all the trouble and expense described above for the fun of it. It's the only way to minimize damage to the works of art and to get satisfactory results, for documentation in our own publications or for use by others to whom we license our photos.

Okay, you're persuaded that we need return on our investment in photographing, not to mention in preserving the work of art in the first place, but that return doesn't neccessarily have to be based on copyright. Correct. But if it isn't, it will have to be based on access, or rather restricting access -- and access must already be restricted for conservation/preservation reasons. It will have to be based on simply having available for hire a color transparency of a work of art. I once costed out for a client the difference in the fee he would have to pay for hiring one of our transparencies vs. the costs he would have to bear for photographing it himself. I mean, we're not talking snapshots here. He hired the transparency, fast.

amalyah keshet
head of visual resources, the israel museum, jerusalem board of directors, the museum computer network chair, the mcn intellectual property special interest group akeshet[_at_]imj.org.il
<http://www.imj.org.il/> Received on Fri Apr 09 1999 - 14:29:05 GMT