Re: Fine Art Reproductions

On Tue, 13 Apr 1999, Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
>
> Obeying Amalyah's logic would mean that singular works of art bear
> unique creative content, and cannot be copied in such a way so that
> the copyrightable content is reproduced unaltered in the copy. Such
> a view would imply that once the period of copyright has terminated,
> control of first-generation reproductions of the original would vest
> entirely in the hands of the owner of the object (as she implies
> elsewhere), which, save for those photographs and publications of
> the object that eventually enter the public domain, remain in
> perpetual control of the owner. In short, if we follow Amalyah, the
> rights to the object and to all first generation copies of the object
> will forever remain in private hands -- good news for museums and
> collectors, since, in effect, it doubles the period of time a work
> through its high-quality photographs can be withheld from the public.
> Legal public domain status for these objects would really be only a
> transfer of exclusive rights from the maker to the owner -- from one
> private domain to another. I do not think that this is the intent
> of copyright laws.

Sorry for my approximate english...

1. Ownership rights = IP rights? The end of public domain?

What wrote Robert A. Baron is absolutly true and is one of the main issue that will arise in a few years. I have discovered (how naive I was) that the economical rights of the owner of a art work are as strong as the rights that the author had on his work. In France, the French National Museums, which is dealing with all the photographic reproductions of the national museums, is acting like an IP rights owner dealing with high "royalties"/fees. Most of the works in the museums are in public domain and still you have to pay to have a reproduction of Mona Lisa or a pharoah sculpture. The issue here is to let the people get a free cultural education.

Culture has become a huge profitable market for public and private institutions which realized they could make a lot of money in selling reproduction rights of PD works for advertising, art books, school books.

OK, book publishers are making profits on PD books and concert tickets are not cheaper for a Mozart work than for a Stravinsky work. But it is easier to copy a literary or musical work in PD, even if there may be tricky problems with copyrighted translations and musical arrangments...

To get a free reproduction of a PD art work, the reproduction must be itself in PD, even if, in the US, the Bridgeman vs. Corel case seemed to deny originality to "faithful" photogaphic reproductions. In France, this ruling would hardly be given by a court, since a painting reproducting faithfully Vinci's "Mona Lisa" wouldn't lack originality and therefore would be copyrighted. Anyway, a faithful photographic reproduction would be copyrighted because a faithful photographic reproduction needs a lot of talent. It is the same as in sound recording, although the engineer is not considered as an author in french law. Originality is a metaphysical question and therefore its definition is merely almost impossible, judges and professor will always gives practical aanswers that are.

The problem is the free access to PD work reproductions as Tyler Ochoa pointed out in one of his message. Concerning art works, the definition of public domain has become extremly tight. Owners of art works have a monopolistic power to allow reproductions and exploitation of these reproductions. This may be fair since the right of property is a constitutionnal right in most democratic countries, but dealing with IP matters, it leads to an illogical situation, the birth of a new and perpetual right to the owner. The right of property should be BALANCED with the cultural and educationnal rights of the public. This sounds a bit "socialist" but when just a few companies (after a few mergers) or public corporations will own 80% of the human artistic patrimony (whether originals or reliable reproductions), the public domain will be an empty concept.

In France, this is specially true, since there isn't even any legal exception for art works that are in a public place (buildings and sculptures). Anyway, public institutions don't require any permission or royalties for reproductions (but this could change), although the commercial reproduction of an art work in a public place requires the permission of the private owner even if the art work is in public domain (under property right and also privacy right).

I don't know if I told you about the Eiffel Tower case. The Eiffel Tower is in the public domain only during the daytime, but not in the nighttime because the lightshow that is lighting up the tower is copyrighted! Well done! So every 70 years, a new copyrighted lightshow will be installed...

The only right remaining for the public is to make a graphic or plastic copy of a public domain art work. But the substance of an art work is its image, its original visual form, specially in our information societies.

I understand that the right of access to the original work to make a copy would be too difficult to manage (Le Louvre couldn't manage the Mona Lisa demands).

Amalyah Keshet wrote : "As an aside, it always strikes me as curious that museums are criticized for the very thing other institutions are praised for being successful in marketing & sales". I remember that the first museums were created during the french revolution in order to give the public free access to his cultural heritage, not to make money. Entering into the electronic age, this free access could be enlarged by giving free reproductions on Internet.

I understand that museums have investments priorities but culture shouldn't be regarded only as a business, a museum shouldn't be a Dysneyland where you can buy cultural goods. Anyway I don't blame Amalyah Keshet if his museum makes some profits. I just think that some museums MAY MISUSES their rights of property in order to have, as Robert Panzer said, a new and perpetual copyright. In this case, these museums don't act for the public benefit anymore.

For example, I was amazed by the prices given by the French National Museums to use a reproduction of PD art work on Internet: 270$ per reproduction for a year. But, this fee is MORE expensive than the fee asked for copyrighted works by the main graphic & plastic authors society (only 57$ per work for a year!! even if, I guess, they don't include the photographer's copyright that should normally be less expensive than the artist's fee). (Anyway, considering all the French public coporations that have lost billions of $ in the past few years, I shouldn't blame the French National Museums for making profits :-)

Finaly, this is a perpetual and more expensive copyright! Something is wrong. Traditional copyright should be abrogated and replaced by this stronger property right. Or copyright should be extended and maybe should be perpetual but this time for the benefit of the author heirs.

I think photographic reproduction of public domain art works should be available to the public almost freely, at least good quality reproductions, i.e. not high quality reproductions that could compete with the "reasonnable" right of the owner to exploit the work. Especially, public institutions like state museums should let available free reproductions on Internet (Jpeg) for fair use, for non-educationnal and non-profit purpose. Considering commercial exploitation of PD art work owned by museums, a system of reasonnable licence or taxation could be proposed in order to finance museums.

Amalyah Keshet's position is really close from this proposition except that it should be a LEGAL disposition and not only just a kind and tolerance.

2. How to determine a PD work in an internationl electronic environment?

I have noticed that it has become very difficult to determine whether or not an art work is in the public domain. The use of alleged public domain art works on Internet is almost impossible for works dating back from the end of the XIXth century or from the beginning of the XXth century. Inevitably, one will have to consider each national law of all the countries connected to the web before using freely an art work in an electronic work (date of publication, creation, date of death of the author)! Good luck! Most of the time, it is difficult to determine whether the work is in the public domain in one country or not... A big amount of work for lawyers in the near future.

There is an urgent need of an international law fixing an unique system of copyright duration and a need of the creation of public institutions able to decide which work is in the PD. Just a dream...

F-R LEVOL
Ph. D. Student - Paris XII
<levolfr[_at_]club-internet.fr> Received on Sat Apr 17 1999 - 23:05:48 GMT