Re: Fine Art Reproductions

On 1999-04-14, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.

(snip)
> But a painting in a museum or gallery is rarely in the same situation.
> By virtue of having once been sold, it was "published";

Most works of art enter museums (in the case of my museum, almost all works) not because the museum purchases them, but because they are donated or left to the museum. Your phrase "by virtue of once having been sold," is better: they were donated to us, but previous to that were sold to that donor. But what if the work is donated by the artist him/herself? Does that constitute publication?

> > 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?

The image in my example is put into everything, including commercial CD-ROMs; my answer does not differ.

> 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?

The same reproduction fee, minus the photography fee, obviously. Archiving and preserving and lending out and following up on return of the transparency -- guess what? -- costs money. Just staffing and maintaining a photo archive, licensing office, and photographic services department, even before you get into databasing and digital imaging and on-line access/delivery initiatives, is expensive.

> > 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.

First of all, what I meant by "a drop in the bucket" was "modest compared to the fantastic sums some imagine we are raking in." Secondly, as we say in Hebrew, you can't pay the grocer with appreciation. We can't pay that $2 million electric bill with appreciation, any more than you can pay your mortgage with appreciation, or your employer can pay you with appreciation.

> 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 an important point, upon which I like to expand when given the chance (thanks!). Museums do indeed provide added value with their images: authenticity, for one thing. Every time I come across a photo of a replica of an archaeological artifact or a photo of a printed reproduction of a painting being passed off as the real thing in a stock photo catalogue, I don't know whether to laugh or cry. Actually, I often laugh at the captions. The information that accompanies our images is accurate, and on request can be extensive. It's backed by curatorial staff that are authorities in their fields. Significantly, we can pick out photos of ours that have been "lifted" and used without permission simply because of outdated captions (with continued research, information changes) or because they're photos taken before an object was restored or a painting cleaned. In light of Bridgeman vs. Corel, I think that the existence of this added value will be an increasingly important advantage.

> 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.
 

I have no doubt that when it is answered, it will happen on this list!

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 Thu Apr 15 1999 - 21:25:46 GMT