Re: Fine Art Reproductions

On 04-13-1999, Amalyah Keshet <akeshet[_at_]imj.org.il> wrote:
>
> I must disagree with some of the statements below. They may reflect
> the writer's experience with a "well known museum in New York," but
> they do not reflect my museum's practice, nor that of most of the
> museums with which I am familiar from a professional standpoint.

VAGA has represented artist's copyrights for over 20 years. We have worked with probably every museum that contains works potentially under copyright. I write from that experience.

I was using the New York museum as an example of an institution that follows a variety of practices contradictory to the intent and meaning of copyright law. Unfortunately, many other museums in the U.S. follow similar practices, albeit to a lesser degree, but not as much as you may think. In Western Europe, and perhaps Israel, for a variety of reasons which can be discussed at a later point, museum practices overall seem to take artist copyright into account more often than the U.S.

> On Sun, 11 Apr 1999, Robert Panzer <bigbusie[_at_]aol.com> wrote:
> >
> > Many museums will prohibit access to public domain works to the point
> > where the public can in no way take advantage of its rights.
>
> Any museum that can raise the money opens public-access study rooms so
> that works in reserve can be seen and studied by interested individuals.
> We have three.

I was writing about public access for the purpose of reproduction. Seen and studied, yes, but would the museum allow interested individuals to produce high quality photographs for reproduction? Most museums in the U.S. would not. Public domain means the right to reproduce the work, not to look at it.

> > For example, if you were to go to a well known museum in New York and
> > ask for access to say, a Pd painting from 1520, with the idea that you
> > would reproduce the work onto 5000 posters, the museum would likely
> > refuse you access to the original and even a transparency, regardless
> > of any money you may offer.
>
> You must be kidding. Make me an offer! We have our own
> commercial/publishing branch, but they often enter into co-production
> arrangements in situations like the one you describe.

Your museum might not deny the right to reproduce, but would it allow the publisher to shoot the work. At most U.S. museums, and probably yours in Israel, I suspect you would require the use of your transparency. And if the work were in copyright, would the fee be such that there would be room for the publisher to also to pay a rights fee to the copyright holder, the artist? In our experience, there often is not. Or the amount for the artist is less than for the museum. Is it fair that the copyright holder should make less than the image source?  

> > Why? Perhaps something might be said about the integrity of the
> > art. But the reality, and it is not rare for the museum to even
> > admit this, is that they do not want competition for their own
> > merchandising operations, which are around 100 million per year.
> > Sounds like access is being used to create a new and perpetual
> > copyright. Unfair competition is also a part of this scenario.
> > Something about monopolies and antitrust rings familiar too.
>
> See my comment, above. 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.
 

There is nothing wrong with being successful in marketing or sales. As I have stated, the problem is when a museum locks out through access and/or pricing, the public's right to assert the public domain or the artist's right to assert copyright. A museum is a repository for art. It generally does not have copyright in the art, yet it often wants to profit from copyright. ???

> > What about works that the artist still has copyright to. Museums
> > will lend transparencies out to publishers, without prior approval
> > from the artist.
>
> An unfair generalization. We, for example, require clients to clear
> artist's copyright *first* before we will license them a photograph
> of a work in copyright. Were an artist to object, we would refuse to
> provide the transparency. (Just for the record, it's only happened
> once in the 7 years I've been handling licensing.) We provide our
> clients with information on how to contact artists or their agencies,
> whenever we have that information.

Again, in the U.S. this is not a generalization. Most museums, (each day, with more exceptions, I am glad to say) do not do this. What is typical is a clause in their loan/rights form that states that it is the publisher's job to clear rights with an artist or an agent. Most often, (especially for pre 1978 work) museums will not provide a contact for artists' rights, and even more rarely will they actually not release the image until the right's holder has authorized it. I would like to reiterate however, that this is changing. In the eight years I have been Executive Director of VAGA, there has been a sea change in museums' willingness to refer art users to the copyright holder. But there is a long way to go. As to the artist rejecting the use, we agree that is rarely a problem. The problem is the artist not getting the chance to say yes or no.

> > The museum's rental/rights form will usually require the publisher
> > to include the museum's copyright notice (if pushed to museum will
> > say it is the copyright in the transparency.
>
> Pushed? We require a photo credit for our photo, which I think is
> reasonable, but obviously instruct clients that the artist's copyright
> info must be properly printed.
 

What I was talking about here was the Bridgeman question - Is there a separate copyright in a reproduction of a two dimensional work of art? As Bridgeman says no, a credit such as, "photo copyright the Israel Museum" would be contradictory to Bridgeman. Admittedly, Bridgeman does not apply in Israel, but we think it makes sense in all copyright jurisdictions. If your photo credit said, "photo the Israel Museum", that would be acceptable. Ironically, In the U.S., VAGA has had to challenge museums about an even more onerous problem, when they use "copyright X Museum", not "photo copyright...". In the past I would have been happy with "photo copyright". Now with Bridgeman, that practice is in question also.

> > Will Bridgeman change this practice?). Of course, in reality, photo
> > buyers at publishing houses don't readily differentiate between a
> > copyright in a photo and one in the painting. The museum's practice
> > seems to deliberately confuse the copyright question. The only
> > mention of the artist's copyright will be in the small legal text
> > (few read this) on the back of the form that informs the publisher
> > that any claims by the artist or an agent for the artist are the
> > publisher's problem.
>
> Our condition regarding clearing artist's copyright is on the front, in
> the same font size as the rest of the document.

This is gratifying. Please tell other museums.  

> > In the meantime, the museum charges fees, for rental and/or rights
> > that leave little, if any, money left over in a budget to pay for the
> > artists'rights - the ones that really count.
>
> On the rare occasions when a client tells us that the fee the artist
> has charged leaves him little room to pay us, we reduce our fee. Our
> copyright (if any) in the photograph is clearly secondary to the
> artist's copyright in the work of art.

Again, this is gratifying to hear. We also do this (as long as the museum is willing to lower its fee also.). My concern is that the publisher will avoid using the image (or other works by the artist) in the future, unless absolutely necessary. We have received considerable feedback that this indeed does occur.

> > This is indeed ironic. Sounds again like unfair competition and
> > monopoly. So perhaps the next move is for the artist to ask the
> > museum for access to the original so he/she can make a good
> > transparency for reproduction. In the words of this former New
> > Yorker, fagedaboutit! They don't do it.
>
> Yes, they do. (What is it about New York...??) Actually, most often
> we make that good transparency, and provide it to the artist at cost.
 

WOW! I wish this were true over here.

> > These institutions are often ones that get special tax treatment and
> > other benefits from their cities and states. They are quasi public
> > institutions. Is this a situation where property and privacy rights
> > should exceed the copyrights of the very people that allow a museum
> > to exist in the first place, the artists?
>
> I once attended a meeting of a local artist's organization (local here
> is national; we're a small country). Several members complained that
> people publish their works without their permission. I stood up and
> mentioned that we have an information center and, in my department, a
> database of artist contact information, and please to let us have any
> information that would help us or our clients to contact them. There
> was a general outcry of "Oh, God! We don't want all those noodniks
> calling us up and bothering us!" I sat down. Indeed, our information
> center reports that most artists refuse to provide an address or phone
> number. We often get the information via what I can only describe as
> "networking."
>
> I should point out that we have very good working relations with the
> artists represented in our collection (and their heirs). I should
> mention, also, that in my position I advise local artists on their
> rights.

I think it is easy to understand why an artist would not want his/her address given out publicly. An easy solution to this problem is for the museum to accept the request and forward it to the artist. I don't think this would cost the museum too much. This is also a reason why organization such as VAGA are valuable. The public can clear rights for thousands of artists in one place.

Overall, I really applaud the practices at your museum. Your comments on CNI have been very thought provoking and enlightening.

Robert Panzer
VAGA
Business email: rpanzer.vaga[_at_]erols.com
<bigbusie[_at_]aol.com> Received on Mon Apr 19 1999 - 00:21:49 GMT