Re: Fine Art Reproductions

On 9 Apr 1999, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> I'm sympathetic to your argument, but if I used two different color
> copiers to reproduce a Van Gogh, I suspect I would also see a
> difference. Why isn't that copyrightable. If the choice of Kodak vs.
> Fuji injects sufficient originality to merit copyright protection, why
> not the choice between Xerox and Canon. And if that's the case, is
> it ever possible to draw a principled distinction between a "slavish
> reproduction" and an "original rendering" of a work of art. Seems
> to me that every reproduction departs in some particular from the
> original -- is there a legal significance in inadvertant vs.
> intentional originality.

Until we arive at some technology that produces exact duplicates of paintings, there is always going to be a difference between reproductions. Certainly a change in media - from a painting to a photograph or a photograph to a photocopy - is always going to change the appearance of the reproduction. But what is the point here? Even though the law uses the word "modicum" of originality, we must find a reasonable definition of originality.

The intent certainly can be used to come to a more "accurate" or more likely conclusion of whether the reproduction is slavish or not, but it really does not seem to be the relevant point. I think the question that has to be asked is, Does the photograph look just like the original except for the changes inherent in the change in media? The debate of the nuances of intent and skill are not the issue. Changing media is not originality. What has the photographer added to the way the original looks?

On April 10, 1999, Amalyah Keshet <akeshet[_at_]imj.org.il>, who works in a museum, wrote:
>
> It (a photo) cannot reproduce the work of art we're photographing; it
> can only give an idea of it, represent it. We aren't after accuracy
> in the sense of copying, reproducing, substitution or forgery, but we
> try to capture the elements which will successfully translate into a
> fair representation of the work when printed, in greatly reduced size,
> on the printed page.

As has been said, copying should not have to be an exact duplication to be considered copying. With the exception of a digital copy of a digital original, there is no such thing as a true copy (duplicate). Keshet's statement does not ring true to me. A photographer of a work of art, especially one who is shooting to create a photo which shall be used as a "template" to make further reproductions for publication, (i.e., what occurs at museums) is after "accuracy in the sense of copying..." The photographer is not trying to "capture... elements" or make a "fair representation". These are the results of the limitations of the medium, not the goal of the photographer. If publishers could get a transparency that would, better than today's transparencies, simulate the colors, clarity, texture, etc. of the original medium, they would jump at it.

Keshet goes on to say:
>
> In short, while on the surface the Bridgeman vs. Corel decision
> sounds logical, I can't help feeling that the court did not delve
> into nor really understand the intent and process of photographing
> two-dimensional works of art, nor the originality of the resulting
> photographs.

I also believe this statement misses the point of Bridgeman. The court did not "delve into nor understand the intent and process" because copyright law is not concerned with either. I would think copyright law is interested in what the objects look like. How one gets to the end result, the copy, seems irrelevant. Patents are for processes, copyrights are for the final execution, the result.

The often repeated issue of controlling access is the ultimate issue. We can talk about the fine points of copyright (the author's right) and public domain (the public's right), but it is all philosphy if the artist (author) and the public cannot get free (or cheap) access to the original to assert their rights. Obviously there are many legimate questions to the practicallity of providing proper access. The current reality however, is disturbing. Many museums will prohibit access to public domain works to the point where the public can in no way take advantage of its rights. For example, if you were to go to a well known musem in New York and ask for access to say, a pd painting from 1520, with the idea that you would reproduce the work onto 5000 posters, the museum would likely refuse you access to the original and even a transparency, regardless of any money you may offer. Why? Perhaps something might be said about the integrity of the art. But the reality, and it is not rare for the museum to even admit this, is that they do not want competition for their own merchandising operations, which are around 100 million per year. Sounds like access is being used to create a new and perpetual copyright. Unfair competiton is also a part of this scenario. Something about monopolies and antitrust rings familiar too.

What about works that the artist still has copyright to. Museums will lend transparencies out to publishers, without prior approval from the artist. The museum's rental/rights form will usually require the publisher to include the museum's copyright notice (if pushed to museum will say it is the copyright in the transparency. Will Bridgeman change this practice?). Of course, in reality, photo buyers at publishing houses don't readilly differentiate between a copyright in a photo and one in the painting. The museum's practice seems to deliberately confuse the copyright question. The only mention of the artist's copyright will be in the small legal text (few read this) on the back of the form that informs the publisher that any claims by the artist or an agent for the artist are the publisher's problem. In the meantime, the museum charges fees, for rental and/or rights that leave little, if any, money left over in a budget to pay for the artists rights - the ones that really count. This is indeed ironic. Sounds again like unfair competition and monopoly. So perhaps the next move is for the artist to ask the museum for access to the original so he/she can make a good transparancy for reproduction. In the words of this former New Yorker, fagedaboutit! They don't do it.

These institutions are often ones that get special tax treatment and other benefits from their cities and states. They are quasi public institutions. Is this a situation where property and privacy rights should exceed the copyrights of the very people that allow a museum to exist in the first place, the artists?

Robert Panzer
Executive Director
VAGA
Visual Artists and Galleries Association <bigbusie[_at_]aol.com> Received on Mon Apr 12 1999 - 00:05:09 GMT