Re: Fine Art Reproductions

On 04/09/99, Amalyah Keshet <akeshet[_at_]imj.org.il> wrote:
>
> On 1999-04-05, Robert Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > Whereas it is possible to reproduce a "text" exactly, it is impossible
> > to create an exact simulacrum of a visual work of art. There will
> > always be a difference between the original and the copy. The relevant
> > question is this: Are these differences purposeful and representative
> > of some original view of the copyist, or are they due to inherent
> > limitations, faults and/or imperfections in the reproductive process?
> > If these differences are due the former, then, I'd say that the copy
> > is copyrightable, if the latter, then there is no originality.
>
> Photographing works of art (something I oversee in the course of my
> work) is unimaginably difficult, frustrating, and "sweat-of-the-brow"
> describes it perfectly. It it highly intuitive and involves a lot of
> very creative input, creative decisions and improvisations -- in short
> everyting that would *not* describe unoriginal copying. This is
> something I've been thinking about as I've followed the Bridgeman vs.
> Corel case -- and while I've been working in the studio, sweating out
> yet another shot.
>
> To be frank, our intention (mine and the photographer's) when
> photographing a work of art is *not* to reproduce it as accurately as
> possible. If we wanted to do that, we'd be working in oil on canvas,
> pastel on paper, or another medium. What we are trying to create,
> and I am choosing my words deliberately, is an original 4x5 inch color
> transparency, a slice of celluloid which is really a new work, and
> which functions as a tool. It 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.
>
> One of the great frustrations in photographing works of art is the
> impossibility (perhaps, in the end, an advantage) of achieving
> "accuracy." There are pigments which simply defy capture on emulsion and
> translation via developing chemicals. (I have a private, rather cynical
> theory regarding Monet's blues.) Yes, we want to represent the yellows
> in a van Gogh -- but good luck. Having recently spent days (and three
> photographers) trying to create a satisfactory transparency of a Duchamp
> collage incorporating a piece of silver foil (sheer hell, if you want to
> know), I can only laugh at the idea that our intent is to "accurately
> reproduce" the work. These inherent limitations, as Robert Baron calls
> them, are exactly what make it neccessary for us to create something
> new, an original effort, that will function in an entirely different
> way from the work of art.
>
> 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 have a great deal of sympathy with Amalyah's argument, and if I was solely concerned with the metaphysical question of whether the photograph was "original" or not, I might agree.

But I would prefer to focus on the REASON we require originality. It is to ensure that a work that is sufficiently old becomes part of the public domain, and can be freely copied or used by anyone.

Where the public does not have access to the original painting, the ONLY way it has to reproduce the painting itself is to reproduce a reproduction of it. Unless we hold that the Bridgeman photographs can be freely copied, the painting, as a practical matter, is not in the public domain.

I might be willing to trade copyright in such photographs for a guaranteed right of access to the original, so that ANYONE who wanted to reproduce the original could photograph it without restriction. Then the painting truly would be in the public domain, and we'd have free competition in reproductions of it. But if that were the state of affairs, we'd have other problems: how to prove that one reproduction was made independently, rather than merely a poor copy of someone else's reproduction; how to compensate the museum for the time and effort needed to make the original available (typically, the painting cannot be displayed while it is being photographed; and it must be moved whenever access to photograph it is sought), etc.

In short, museums restrict access to the originals for many good reasons, but also because it gives them a monopoly on reproductions. Given that this practice is unlikely to change, it seems to me the outcome in Bridgeman is necessary to ensure that the painting IS in the public domain as a practical matter.

The flip side is: Why do we grant copyright in the first place? In most countries, it is considered a natural right of the author; and in those countries, I would expect the Bridgeman photographs to be protected. But in the U.S., the principal purpose of copyright is to encourage the creation of "new" works. And the experience is that copyright is not necessary to encourage museums to make high quality reproductions of their artworks. They will do it whether or not we allow them to have the copyright in those photos; and denying copyright in the Bridgeman photos will probably have very little effect on museum photography and licensing practices. Most people will pay for either the quality or the convenience. But when the price gets too high, some people will be willing to settle for the unauthorized reproduction. The bottom line is that more people will have access to a reproduction of the painting at a lower price. The public is better off, even if photographers and museums feel slighted. And in the U.S., that is supposedly all that matters [at least in theory].

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Apr 12 1999 - 21:33:12 GMT