Re: Fine Art Reproductions

On 1999-04-12, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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 have the feeling that were we to stop using the word "painting" and subsitute the word "book," all the arguments would suddenly change. (We wouldn't be talking about Bridgeman anymore, but we would be talking about pd.) That is, it doesn't seem to bother anyone as much that an original pd manuscript remains in private hands, or in the rare book room of a library, and access is restricted. The sensitivity to works of art is at once complimentary -- it's nice to know that everyone values them so passionately -- but on the other hand what about the value of other kinds of pd works? Let's say I have in my possession the original of an unfinished story by an 18th century author. Or an unpublished musical score by Mozart. Besides quietly hiring an agent to assist me in making a packet out of this situation, I probably wouldn't have much to do -- certainly not to deal with demands to copy the original because it's pd.

Now, more to the point of the Bridgeman discussion, let's say my museum publishes a catalogue, and someone scans from the catalogue our photo of a two-dimensional pd work of art. Do we sue? No. These photos are already "freely copied" all over the place, in both senses of the word "free."

Now let's say someone discovers that we have in our storeroom a little-known Turner watercolor, or just a lovely 18th-century botanical print. They want to publish it, and we don't have a transparency in stock. Fine. They order special photography, we produce it, they pay, and yes, we'll take a "repro rights" fee -- something outrageous like $75-$175 depending on if it's to be used as an illustration in a high print-run trade book, in one or more languages, full page or smaller, etc. Fees are much lower for low-print-run, scholarly books, obviously. Now, it costs us on average about $120 to do a one-off special photography order; at the standard 100% markup for overhead, we would be charging $240. Instead we're charging $195-$295. Considering the cost of preserving and documenting that Turner or that botanical print, I don't exactly blush in shame that from time to time we make an extra $55 on the deal. Nor do our clients balk at the price.

An interesting statistic: my museum's annual electric bill is around $2 million. Temperature and humidity-controlled storage and display aren't cheap. I really don't think we're out of line at all in restricting (not forbidding) access to pd works in our possession, providing photographic services, and taking modest fees. (I should mention, by the way, that we also permit students, researchers, etc., to make snapshots, if we don't have a photograph in stock.) I will repeat one thing I've already written: if we (museums) do not earn income (in many ways, not just by photo licensing, which is a drop in the bucket), we cannot preserve, research, interpret, display, and publish the works of art in our care. You won't have museums to go to, to see pd works of art.

> 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.

Sorry, wrong. It will. As I stated in my original message, we (museums, my museum) cannot afford to photograph works unless we can earn a return on them. We simply don't photograph until the money is in hand. It is more likely to backfire: the less income we can earn, the less access we can afford to provide. The most cost-saving solution is to lock works in storage.

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 Tue Apr 13 1999 - 12:09:47 GMT