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LONG: Intellectual Property and Classical Works (was TAN: Photos of objects: msg#01056education.classics
What I have to say below doesn't constitute legal advice or legal opinion, as I am not a lawyer, and so it shouldn't be used in conversations with rights managers. I'm trying to raise questions you might want to discuss with your attorney or counsel, who can apply the proper training to these issues. On Apr 28, 2004, at 2:50 AM, Ling Ouyang wrote: At 07:21 PM 4/27/2004 -0400, PTR wrote: Tsk, tsk. Don't tell me you are another one of those that would want clarification from the museums. You know, to quote an off-list message I got regarding this, "that might ruin things for everyone"... They aren't MFA images, though. They're your images. This is boilerplate for stuff you have acquired from the MFA, not something you shot yourself. But see below. This is what Capitoline Museums sent me: My Italian really isn't up to this (or anything, for that matter), but it looks as though they're just telling you that posting to a website is not "personal use" and so not permitted - but don't explain how they can enforce the limitation to "personal use." But see below. Of course, that leads me to ask how you got the MFA to let you take pictures in the first place .... Ah, this is what they think gives them copyright on images you've taken. That "personal, non-commercial" bit depends upon their physical property rights to the objects, not copyrights. Physical property rights to an object of art do not automatically convey copyright: for instance, I own a copy of *Plan of Attack*, but that doesn't give me the right to limit my friends from photocopying it if I lend it to them - but Bob Woodward does have that right. Even if I owned every single physical copy of *Plan of Attack*, including the "manuscript" (I imagine the actual manuscript is a magnetic sequence on a hard disk), the copyright would still lie with Bob Woodward. If the Louvre went bankrupt and sold its collections at bargain basement prices, and I managed to acquire the Venus de Milo for the price of a cup of copy, I could not prohibit the author of a new book from using this image http://www.clasohm.com/photodb/photo?photo_id=7355 as an illustration; but I could prohibit them from using a photograph I had taken; and if I also managed to acquire a work of modern art - created within the past 70 years, or by someone who has died in the past 70 years - and also with that acquisition acquired the copyright to the work (which is a separate property right), I *could* prohibit a publisher from using a photograph they themselves had taken of that work in one of their books, though I couldn't do anything about photographs for which they had acquired a license from the previous owner. For classical objects, their image - "expression" - is in the public domain, even if their physical manifestation is not. The creators of classical works have all been dead for at least 70 years. You can own the pot, the sculpture, the mosaic - but not its image. I'm guessing that the legal mechanism both museums are using is that the purchase of the *ticket* obliges you to accede to their IP policy before you will be granted entry into the collections - nothing obliges me to put any art work on display to be photographed. The MFA is trying to separate the right to view and the right to photograph from the ownership of the image you've created by contract, but I don't know if they can legally enforce that contract on a work in the public domain, because they do not own the copyright on the photograph you have created. But again, I am not a lawyer, and this does not constitute an assertion of legal knowledge, only a raising of rather complicated issues about what "intellectual property" rights really exist in this case. The purpose of their limitation to "personal use" is of course to eliminate a possible source of competition for their own photographs, rights fees for which are a source of income for the museum. (Note: my own opinion is that *ethically* if one is to publish a photograph of a work in a museum, it is best to buy the musuem's copy and pay the rights fee, as a kind of recompense to the museum for its effort in preserving the work. But even an ethical *obligation* is not necessarily a legal obligation.) About the complexity of "intellectual property" rights concerning classical works: one of my teachers liked to tell this story. He offered performance rights to his translation of a Euripidean play to a colleague in the theater department. He sent a note to his agent to this effect. When the colleague called the agent requesting written confirmation, *the rights manager* at the agent's office asked him, in a tone suggesting a straight face, "do you also have the author's permission?" The dramaturge said, with some obvious confusion, "The author is Euripides." "I'm sorry, but you will need Mr. Euripides' permission to perform his work." "But he's been dead for 2000 years!" "Then you'll need the permission of his estate. Sorry." Click. There are all sorts of complexities in the "intellectual property" rights of work based upon ancient/classical works. When a scholar produces a scholarly edition of a classical text, he owns the copyright to that specific text as well as (more sensibly) to the various editorial matter (such as introduction, apparatus, commentary). So even though the theoretical idea behind textual criticism is that one is attempting to recover the ideal text created by the author 2000 years ago, an ideal text which, if it could be perfectly recovered and proven to have been perfectly recovered, would due to its date of composition be by definition in the public domain, the imperfect results of textual critics' best efforts to recover that text are seen (rightly) as the products of their editorial work and are their "intellectual property." So the question becomes: can a modern publisher of e.g. a text of Horace's odes can insist on a 4-figure payment for the right to reprint a particular text of one of Horace's odes *without the apparatus* - in other words, without any evidence of editorial activity other than the actual representation of the text on the page which is the result of a given editor's exertions? The consensus seems to be that the publisher is within its rights. But then we run into other issues. What if the editor could (which no editor can, humans being fallible creatures) somehow recreate a perfect text and prove, beyond any doubt, that she has recovered that perfect text? Would that perfect text be her copyright? And what about papyri? A transcription of a papyrus is obviously the copyright of the transcriber, insofar as it represents his judgment of what the papyrus says. But if another papyrologist examines the same papyrus, and produces her own transcription, her transcription is under her copyright. What happens if both transcriptions, neither influenced by the other (something that never happens, fortunately), are identical, and one licenses her work under a conventional rights assignment to a publisher, while the other licenses his work under say a Creative Commons license? What about a translation which utilizes only one copy-text of the original? Does that count as a derived work of the original work, or of the edition used? Commercial publishers (and in this context one should consider university presses to be commercial publishers, and museums, too) have a vested interest in maintaining the strictest possible interpretation of copyright law. They will, if they can do so from a position of legal ignorance, assert rights they do not have. (In other words, a counsel cannot legally help them to assert a right he knows they do not have, but if there is any doubt, it is his job to help them assert the most restrictive interpretation possible, and at times that interpretation will be wrongfully favorable to the rights-holder). As I've said, I am not an attorney, and what I have to say on this topic doesn't have the same force that an attorney's opinions on these matters would have; but I have to say that I'm not entirely convinced that some of the practices of commercial publishers and museums with regard to the assertion of "intellectual property" rights over works created by authors who have been dead for over 70 years (yes, I'm oversimplifying) are based upon a sufficient awareness of what these works represent. Anyway, what I have to say in this thread shouldn't be used in conversations with rights managers, but they are good questions to raise with your attorney or counsel, who can apply the proper training to these issues. But I posted it to remind list-members that not all assertions of "intellectual property" rights are valid, and you cannot necessarily trust a publisher's counsel to be diligent in preserving your rights. Patrick Rourke ____________________ Note that I'm not using "object of art" as a synonym for objet d'art at all, but simply to refer to the physical manifestation of a work of "art" Why do I put "intellectual property" in scare quotes? Because it's a portmanteau of various rights that have very different terms, and there's a tendency on the part of rights owners to conflate copyright, physical property, licensing rights, patent, trademark, and other "intellectual property" rights in order to maximize the rights holder's control over a work. It's necessary to separate out these rights, though, to determine what controls are legally permitted. Oh, the last time I was at the MFA was in November, I think. I wonder if they have changed their policies over the years. On Apr 26, 2004, at 10:10 PM, Ling Ouyang wrote: |
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