Re: Fine Art Reproductions

On 04/13/99, Amalyah Keshet <akeshet[_at_]imj.org.il> wrote:
>
> 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 unpublished musical score by Mozart.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.

Actually, no; my policy arguments wouldn't change at all in the case of a public domain book or musical work. There are only two relevant differences. First, as Robert Baron has pointed out, a book [or a musical work] can generally be reproduced without access to the original. A reproduction of a copy is a relatively easy matter. If access is required, however, I would make the same arguments as I do for public domain paintings.

The second difference is: what does it mean to say that a painting is in the public domain? Under U.S. law, prior to 1978, duration was measured from the date of publication, not the date of creation. Publication was defined as the sale or offer to sell one or more copies to members of the general public. Thus, the sale of an original painting to a museum or gallery constituted a "publication" of that painting. An "unpublished" manuscript in a library, however, could (in theory) be protected perpetually unless and until it was published with authorization.

The 1976 Act changed the beginning of copyright protection from publication to fixation. But for previously unpublished works, it gave them a term of copyright equal to new works, subject to a minimum: if the work remained unpublished, it would not go into the public domain until Jan. 1, 2003. Thus, an unpublished manuscript in a library may still be under copyright, regardless of its age. [A strange result, to be sure, but that's what the statute says.] But a painting in a museum or gallery is rarely in the same situation. By virtue of having once been sold, it was "published"; and if it is sufficiently old, it is no longer subject to copyright in the U.S. [After 1/1/2003, these works will be treated more equally.]

Maybe your real beef is with the definition of "publication." Maybe a work of art shouldn't be considered "published" until a reproduction of that work has been published. But if so, the problem lies with the definition of publication, not with a different attitude towards books or music per se.

> 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."

I'm glad you have such a policy. But would your answer differ if the scanned image was put onto a CD-ROM and sold to the public? Those were the facts in Bridgeman. If you would object, what is the difference? And if you wouldn't, what's the problem?

> 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.

I have no problem with a museum charging a one-time fee for a reproduction fee of this sort. You need to cover your costs, and you are providing a service. But I would have an objection if you required royalties in addition to a reasonable reproduction fee. And once you have the transparency in stock, your marginal costs of reproducing it are close to zero. What is your policy with regard to subsequent requests to use an existing transparency?

> 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.

In the absence of sufficient public funding for museums, this is a reasonable policy argument. It's really a question of whether this is a policy choice that can be justified under the current Copyright Act, or whether it needs Congressional action to amend the Act.

On the other hand, if photo licensing is just a drop in the bucket, doesn't that suggest that the Bridgeman decision won't result in major adverse effects to museums? Maybe it will result in more reproductions and a greater public appreciation for art in general, which will lead to more public support for museums.

[Predicting the future is a dicey proposition. Remember, the movie industry was convinced that home videotape machines would mean the end of movies. In fact, it has turned out to be a godsend for them.]

> > 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.

One of the problems with U.S. copyright law is that it is justified on the basis of assumptions about economic incentives, but there is no practical way of testing those assumptions empirically. The "right" answer from a policy view depends on what museums will actually do. This question needs to be studied empirically, not just based on assumptions (like mine) that may or may not be true. In the absence of data, there's simply no way for us to resolve a disagreement about the practical effect of Bridgeman.

My belief is that most commercial users are (and will continue to be) willing to pay museums something for providing access, quality, convenience, avoidance of litigation, and the cachet of being "authorized" by the museum. This is certainly true in the print medium, where second and third-generation copies are not of acceptable quality. Whether it remains true in a digital world is a question that has yet to be answered.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 14 1999 - 22:25:45 GMT