Re: LONG: Intellectual Property and Classical Works (was TAN: Photos of objects in museums)

At 05:29 AM 4/28/2004, Patrick T Rourke wrote:

> 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;

Maybe. There is case law on this very subject. A case in 1999 called
Bridgeman Art Library v. Corel Corporation held that photographic
reproductions of two-dimensional works, which themselves are in the public
domain, do not have the requisite amount of originality to be protected by
copyright. The decision can be found here:

<http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm>

Note that the case is not exactly on point with the facts that (I believe)
prompted this thread, i.e., the right to reproduce one's own photographs of
public domain works. Also note that the case covers two-dimensional works
of art only. So in Patrick's case of the Venus de Milo, he would be within
his rights to prohibit reproductions of his own photographs. On the other
hand, if it was the Mona Lisa he had picked up for a "cup of copy", he
would be out of luck.


> 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.

Agreed.

> 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.

So the issue here is whether the license under which a museum permits one
entry and which further prohibits the taking of photographs can be enforced
to prevent reproduction of photographs taken in violation of it. Well, as a
threshold matter, there's little question that the license cannot affect
the photographer's underlying ownership of the photographs. Copyright
cannot be transferred in the absence of a written instrument. The implicit
licenses one agrees to when one enters a museum or purchases a ticket would
probably not qualify as a written assignment of copyright. Therefore, the
copyright will remain with the photographer, whether permitted or not.
However, the contract in the license is certainly valid nonetheless, and
conceivably the breach of a contract to not reproduce photographs one has
taken of the museums's objects may very well be enforceable, and if damages
can be proven, the museum very likely has a potential remedy, even if it is
not founded on the laws of copyright.

Bottom line: if you are contemplating reproducing images of an object taken
in a museum that prohibits photography, one should weigh the costs of
consulting a competent practitioner of intellectual property law (and the
potential expenses of defending a lawsuit) versus the costs of just
licensing the museum's images, which are in most cases going to be better
than one's own photographs. And, of course, as Bridgeman teaches us, if
it's a two-dimensional work of art and it's in the United States, just buy
the CD-ROM from Corel.