Re: Photos of National Gallery Paintings

On Wed, 29 Dec 1999, Don Roemer <droe2[_at_]earthlink.net> wrote:
>
> On Sat, Dec 18, 1999, Robert Panzer <bigbusie[_at_]aol.com> wrote:
> >
> > I think Robert Baron is correct in his assertion that photographs
> > of public domain art held by governmental or quasi-governmental
> > institutions (which are staffed by government employees) are in the
> > public domain. Further, I believe the Bridgeman case would apply
> > even if the above would not.
> >
> > This copyright question is crucial because many museums are interested
> > in perpetually controlling copyright in the pd works they own by
> > controlling access to reproduce the works. First, they usually will
> > not let you set up your tripod and shoot the work at the museum.
> > Second, by claiming copyright in their photo of it, and then
> > contractually binding the borrower of the photo (presuming their photo
> > is the only good one on the market -- which is not uncommon), the
> > museum controls all reproductions of a pd work. I believe this is an
> > unethical and possibly illegal activity. The question is, which is
> > stronger, the property right or the right of the public to assert its
> > public domain rights?
>
> I'd like to hear your theory of law as to the practice being illegal.

Public domain is the right of the public to use creative works which would, at an earlier date, be protectable under copyright. If say, a museum, can keep the public from asserting its public domain right by controlling access to the only copy, then the museum creates what is essentially perpetual copyright for itself. While I do not believe that the 1909 or 1976 statues directly address this issue, I cannot imagine that the intent of our congress was to allow this to happen; there is no point to copyright if an owner of a copy (sometimes the only copy) can thwart the copyright holder's right to assert copyright.

I am also aware that in a second ruling after the famous work for hire case which involved a work of art, Reid vs. Committee for Non Violence (CCNV), a judge ruled that CCNV could not deny Reid access to the work of art in order for him to make copies.

The access vs copyright issue is somewhat similar to the debate going on about fair use and the Internet: If Web site controllers can keep fair users from downloading content, then there can be no assertion of fair use (I think there is going to be some legislation on this). I believe the same argument applies to public domain.

Robert Panzer
Executive Director
VAGA
<bigbusie[_at_]aol.com> Received on Thu Dec 30 1999 - 19:11:02 GMT