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Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching

Kenneth D. Crews

Notes de l’auteur

This article is an outgrowth of a research study of museum policies and practices funded by The Samuel H. Kress Foundation. I thank Max Marmor of the Kress Foundation for his steady support of this research initiative. Melissa Brown and Michelle Choe worked with me on various stages of this study as research assistants, and their contributions continue to influence my work on these issues. An early version of this paper was presented in November 2011 at a symposium on ―IP Bullying or Proactive Enforcement? held at Fordham University School of Law, sponsored by the Fordham Intellectual Property, Media & Entertainment Law Journal. I thank the faculty and students for the invitation, and this project benefited from the insightful comments of Robert Clarida, Ron Lazebnik, Mary Rasenberger, Joel Reidenberg, and other panelists and participants. I have benefited from the privilege of exploring and testing arguments raised in this study with many good colleagues, including Elizabeth Townsend Gard, Ariel Katz, Lydia Loren, Virginia Rutledge, Matthew Sag, Christine Sundt, and Gretchen Wagner.

Texte intégral

Introduction

  • 1  Whatever the terms and conditions of use, museum policies can ultimately drive users to secure per (...)

1Claims of copyright protection that overreach the bounds of justifiable legal rights occur in many different contexts. Indeed, in almost any copyright litigation, issues regularly surround the legitimacy of the copyright and the rightful claim to it. Although multitudes of copyright questions arise daily, few of them ever go before a judge. Most people struggle with their conflicts and decisions in the simpler context of day-to-day transactions. One context where such decisions routinely arise is the use of images of artworks, especially high-quality images that museums and other organizations make of the original art in their collections. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with terms of use and license restrictions.1

  • 2  For a study of the problem before the Bridgeman case reshaped much of the discussion about related (...)

2Quality reproductions are critical to creating art history books or museum exhibition websites, and high-resolution and accurate photographic images can be expensive to produce. Some museums find that supplying images can be an active and lucrative service, or at least the museum may strive to cover expenses. Museums often assert rights of control over the images by means of copyright or contract and licensing terms. This article explores the extent to which museums have strained the limits of copyright claims and indeed have restructured concepts of ownership and control in ways that curtail the availability and use of art images far beyond anything that may be grounded in copyright law.2

3This analysis of museum policies examines the matter of overreaching by placing them in the context of copyright law. Part II sets forth the background of this study through the collection and analysis of policies and license terms from major museums in the United States. Part III lays a foundation of copyright law, including rights of use, duration of protection, and the limited protection of moral rights under American law. Parts IV and V explore the challenge of policymaking at museums. These sections identify the difficulties that museums face as they might seek to develop policies more conducive to meeting the needs of users, or that at least address the nuances of copyright law in service of the public interest in access to and use of art images. Part VI offers an original breakout of varieties of overreaching in museum policies. While this section provides specific examples of museum practices as forms of overreaching, it also highlights examples of alternative approaches that museums have used to address the issue in a manner that better responds to copyright and the interest of users. This study demonstrates that overreaching occurs in different forms, and that the pressures for overreaching are endemic in the law and in the exigencies of practical applications. Nevertheless, policymakers have realistic alternatives for better standards, as this article will show.

Background of the Study

  • 3  The tension was expressed in another way: As museums and cultural institutions throughout the worl (...)
  • 4  One study lays out the “paradox” for museums: “a situation characterized by competing impulses to (...)

4One of the central problems motivating this analysis is the potential conflict between the terms of museum policies and the educational and public interest objectives of the institution.3 On the one hand, the museum has a primary objective of informing the public about art and opening opportunities to understand and appreciate creative works. On the other hand, museums often feel the pressure to set restrictions that ultimately limit access and confine uses of art images. Policies reveal much about how museums choose to resolve that tension.4

  • 5  For another publication resulting from the project, see Kenneth D. Crews and Melissa A. Brown, “Co (...)
  • 6  Details about the background and other aspects of the Kress study are set forth in Kenneth Crews, (...)

5This paper is one outcome of a study of museum licensing practices funded by The Samuel H. Kress Foundation.5 The principal objective of the study has been to gather and analyze a sample of art museum policies and to examine their similarities and differences, producing a systematic inventory of the range of issues addressed in license agreements and the different ways in which museums respond to these issues. Through analysis of diverse terms and conditions, this project has the potential to demonstrate options that museums have when drafting licenses, policies, and other terms of use to address specific concerns.6

  • 7  See Melissa A. Brown and Kenneth D. Crews, Art Image Copyright and Licensing: Compilation and Summ (...)

6The study analyzes policy terms from a sample of art museums in the United States. Fifty museums, each with a primary specialty in art were selected from the accredited members of the American Association of Museums. The selected museums were chosen with an aim toward achieving a diverse sample in terms of the size and nature of their collections, the staffing and budget, and the scope of their image licensing practices. The Kress grant supported the detailed project of locating policy terms from almost all of the fifty identified institutions and isolating and organizing the terms in a manner that allows for a comparison of the specific language used in each.7

7This article focuses on selected provisions from the policies surveyed. This study does not attempt to identify quantitatively measured trends in policymaking or museum practices, although examination of the terms does suggest that some provisions are comparatively common, and museum practices appear to trend in certain directions. The methodology used in this study is aimed at identifying forms and varieties of policy practices and comprehending the substantive character and likely consequences of those provisions.

  • 8  This article presumes that the provisions are enforceable, while one must acknowledge that there i (...)

8The provisions analyzed are substantive terms established by the museums as conditions or requirements that the museum expects users to follow in exchange for the museum‘s consent for their use of the art images in question. They are effectively the quid pro quo for permission to use. The provisions may be presented as ―terms of use or as formal license agreements.8 They may be labeled as ―policy or as contractual language. One museum may ask for formal consent from the user, and the next museum may state that users are deemed to consent to the terms by virtue of using the collection or the website. In any event, the provisions reflect a decision by the museum that the terms are proper, and as a result the terms are akin to a policy choice. This article will often use the label ―policy to encompass all of these possibilities.

Background of Copyright Law

Rights and Limitations

  • 9  Copyright Act of 1976, 17 U.S.C. § 106 (2006).
  • 10  Ibid., § 102(a).
  • 11  Ibid., § 106.
  • 12  The Copyright Act defines a derivative work as ―a work based upon one or more preexisting works, s (...)
  • 13  The concept of public display is defined broadly in the Copyright Act. The most relevant part of t (...)

9The museum policies analyzed in this article are responsive to copyright issues, or at the least they purport to set standards for uses that are otherwise governed by copyright law. Fundamentally, copyright law grants a set of exclusive rights to the owner of the copyright.9 An artist, whether little known or world famous, may create a stunning new painting, and the law will generally grant automatic copyright protection to that artist with respect to that work.10 While copyright protection is extensive in many respects, it is also limited in others. Copyright law grants the copyright owner a bundle of rights, such as the right to make reproductions and derivative works or to make public displays of those works.11 These rights are implicated when a museum makes or reproduces a digital image of an original painting. The use of that image for a research study, a set of gift cards, or coffee mugs may also be considered a reproduction or a derivative work.12 Simply putting the work on display in the museum may be a form of public display that violates the rights of the copyright owner.13

  • 14  Copyright Act of 1976, 17 U.S.C. §§ 106 & 114 (2006).
  • 15  Fair use is codified at Section 107 of the U.S. Copyright Act, but other exceptions continue in Se (...)
  • 16  Most countries have multiple statutory exceptions. Often the exceptions apply to familiar activiti (...)
  • 17  For example, Section 108 allows libraries to make copies of certain works for preservation and rep (...)
  • 18  For the statutory provisions related to copyright duration, see ibid., §§ 301–05.
  • 19  Warhol and Lichtenstein died in 1987 and 1997 respectively. Given that copyrights in their works l (...)
  • 20  Rembrandt van Rijn, lived from 1606 to 1669. Leonardo da Vinci lived from 1452 to 1519. It would b (...)

10The rights of the copyright owner are limited in many important ways. First, not all rights apply to all works. Most notably, sound recordings do not have full rights of public performance.14 Second, the rights are subject to limitations and exceptions, most notably fair use.15 The Copyright Act in the United States and in most countries includes several statutory provisions that create exceptions to the rights of copyright owners.16 Many of these exceptions are important in the context of art. Fair use and some exceptions related to education and research can apply to artworks.17 Third, the rights under copyright are also limited in duration. Copyrights do last for many years, indeed many decades, but they do eventually expire.18 The artistic accomplishments of recent artists, such as Andy Warhol or Roy Lichtenstein are surely under copyright protection.19 By comparison, Pablo Picasso began his artistic career in the late nineteenth century, and it extended until his death in 1973. Many of his works are recent enough to still be under copyright protection, but some of his earliest pieces may be in the public domain. We can be much more confident in concluding that the masterworks by Rembrandt, da Vinci, and other great artists from long ago are securely in the public domain and without any copyright protection.20

  • 21  Principles of moral rights are examined in detail in other sources. See, e.g., Megan M. Carpenter, (...)
  • 22  Visual Artists Rights Act of 1990, Pub. L. No. 101-650, §§ 601–10, 104 Stat. 5089 (1990).
  • 23  Berne Convention for the Protection of Literary and Artistic Works, S. Treaty Doc. No. 99-27 (1986 (...)
  • 24  The scope of ―works of visual arts‖ is defined in detail to include only some works created in sin (...)
  • 25  Ibid., § 106A(a)(2).
  • 26  Ibid.
  • 27  Ibid., § 106A.

11Apart from this structure of economic rights are concepts of moral rights.21 While some countries have strong moral rights, the doctrine is sharply limited in the United States. Congress amended the Copyright Act in 199022 to add limited moral rights largely to seek compliance with the requirements of the Berne Convention, a multinational copyright agreement.23 American moral rights do apply to some works of art, making the concept relevant to many of the works governed by the museum policies analyzed in this article.24 Under U.S. law, moral rights give artists a legal right to prevent or recover damages for the intentional destruction or mutilation of some art works.25 Moral rights also give an artist the right to have his or her name on a work, or to remove the artist‘s name if the work has been altered in a manner that harms the artist‘s reputation.26 The statutory provision is rich with details, and it applies to only a narrow class of art works. In essence, it establishes rights aimed at protecting the identity of the artist and the integrity of the art.27

Copyright and Art

  • 28 The principles of copyright and art are examined in other publications. See, e.g., Marilyn Phelan, (...)
  • 29  The concepts of ―original‖ and ―copy‖ are the subject of considerable scholarly scrutiny. See gene (...)

12Except for the concepts of moral rights, the principles of copyright law apply to works of art in generally the same manner that they might apply to literary works, musical compositions, and even software programs.28 In a few ways, however, copyright fundamentals do apply to art in some distinctive manner central to this study. Some of those differences are overt examples of real and clear differences in the law. Other differences arise from the context and the distinctive character of artworks. When a scholar analyzing a literary or musical work, for example, needs to reproduce and scrutinize a particular work, many different published versions of the work may exist, and they may exist in multiple copies allowing often for easy availability. Works of art are comparatively unique.29 When Vincent van Gogh makes a painting of irises, sunflowers, or a starry night, he would usually make only one single painting of that image. Other artists often make multiple studies of the same subject matter, but each work has its own distinction separating one from the other. When the need for a particular work of art arises, a reproduction or an alternate version may not suffice.

  • 30  ―In tangible terms, traditional memory institutions [including museums] were governed mostly by a (...)

13Art is also different from many other types of copyrighted works because that one unique original is often in the possession of a party that maintains tight physical control over the work and access to it.30 Thus, one‘s ability simply to enjoy or to make a photographic reproduction of the work may depend on consent from the owner. The copyright owner may have legal rights with respect to the protected expression in the artwork, but the owner of the physical object has control over any realistic ability to access and utilize the original work. The control asserted by the owner of the physical object may bear no relationship to the copyright. It may be asserted while the copyright is still in effect, and it may be asserted indefinitely, long beyond the expiration of the copyright. The ability to reproduce images of a Picasso hanging in the Museum of Modern Art may depend upon cooperation from the Picasso estate and from the museum. The ability to reproduce medieval triptychs in the Metropolitan Museum of Art may not be constrained by copyright law, but it may well be controlled by the policies and practices of museum officials.

  • 31  Guy Pessach, “Museums, Digitization and Copyright Law—Taking Stock and Looking Ahead”, Journal of (...)
  • 32  A photographic reproduction could also, arguably at least, be a derivative of the original artwork (...)
  • 33  The U.S. Supreme Court ruled in the nineteenth century that photographs could be protected under c (...)
  • 34  See Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, 200 (S.D.N.Y. 1999) (holding that ph (...)
  • 35  For a work to be copyrightable, it must include some minimum amount of creativity. Feist Publ‘ns, (...)
  • 36  Bridgeman, 36 F. Supp. 2d at 197. In 2008, the United States Court of Appeals for the Tenth Circui (...)

14Another reason for the distinctive treatment of art images as opposed to original works of art under copyright law is the fact that many art images comprise two or more copyrights.31 Copyright may or may not protect the original work of art, but copyright may subsist separately in a photographic reproduction of it.32 Almost any photograph, from a casual snapshot to a professional work of artistic accomplishment, is protectable by copyright in any conventional sense.33 For a photograph of a work of art, however, the court in Bridgeman Art Library v. Corel Corporation34 found that such direct photographic reproduction of a work of art is not eligible for copyright.35 The case was heard by the Southern District of New York, and the court labeled such two-dimensional copies as ―slavish and determined that they lack sufficient originality and creativity to qualify for copyright protection.36

  • 37  See generally Karen D. Williams, “Disparity in Copyright Protection: Focus on the Finished Image I (...)

15One can readily see the significant reach of the Bridgeman decision, as well as its limits. The ruling casts doubt on claims of copyright in the millions of photographic reproductions of two-dimensional works of art.37 The case also undercuts the claims of legal protection to the livelihood of many professional photographers. The craft of making high-quality photographs of art, and capturing the color and lighting of an original painting is a technique that requires extensive training and preparation as well as expensive equipment. To deny the photographer legal protection for his or her labors may well erode the incentive to produce high-quality work and to make the resulting photographs widely accessible.

16Moreover, Bridgeman is arguably of limited legal scope. A photographer would probably not have to add much to the photograph in order for it to be within the reach of copyright. Any adjustment of angles or shadows, as well as inclusion of the frame and surrounding setting into the photograph would probably be enough to take the photograph beyond being a simple reproduction of the painting. Further, the Bridgeman ruling was only about two-dimensional works of art. Almost any photograph of a sculptural work or other three-dimensional work will most likely include some background elements as well as choices of angles, shadowing, and lighting. Those choices are probably sufficient to qualify the work for copyright protection. For purposes of this study and its examination of the possible overreaching of copyright claims, the greatest interest lies with photography and other imaging of two-dimensional works of art. It is with these types of works that the law casts the greatest doubt about claims of copyright protection. It is also these types of works that are probably most in demand by scholars and researchers as they seek images to use in connection with their work.

Museum Claims of Copyright and Control

Rights of Ownership

17Museums create a legal conundrum when they claim legal rights to control images, where copyright protection is doubtful at best. The works in question—both the artwork and the reproduction—may be completely in the public domain. Nevertheless, museums often assert claims of copyright protection to the images. If they are not in fact claiming copyright protection, they are often asserting levels of control over those works through contract or license terms associated with the work. Some museums go further and assert levels of control simply through terms of use that purport to be binding on anyone accessing the images from a website or other source. The museum that supplies the image is the party that is solely defining the terms of use, and it can do so based only on its ability to control access to the work. Yet the terms asserted are typically couched as if they were binding provisions of law. The museum is the gatekeeper of access to the art and to the images; in its role as a gatekeeper, the museum is devising claims that may be overreaching.

  • 38  One museum director made this candid assessment: ―We control how our collection is used not throug (...)

18Controlling access to the original artwork is an outgrowth of the museum‘s possession of property, not of copyright.38 The museum can control access to the original artwork by means as simple and as obvious as locking the front doors. The museum can decide who enters the premises and who can bring in the sophisticated photographic equipment to make the quality images. The museum then supplies those images at the request of researchers, teachers, publishers, and anyone else seeking to use it. A museum is certainly justified in asking for payment for services. Producing and delivering a quality image can be expensive. Contractual control over some uses is at least rational. A museum may be deterred by the risks of releasing one image only to find that it has been shared publicly with no restriction, thereby undercutting any further incremental sales.

Downstream Control of Images

19The dynamic of the market transaction with the museum is actually much more complex. The terms of the transaction and the restrictions on the use are vastly more elaborate, as will be detailed later in this article. The transaction is deeply affected by the scarcity of access. That fact, combined with the apparent validity of legalistic controls, leads to the perception of downstream control of subsequent uses. In other words, an individual who acquires an image directly from a museum may in fact be contractually obligated to that museum and subject to any restrictive terms that the user accepted. Because those restrictive terms shape the work and therefore the way it will be seen and found by readers and other subsequent users, the terms carry with them a perception of the control of all uses of that image—not only by the party in privity with its agreement with the museum. Once establishing that perception of immediate and downstream control over the uses of the image, the continued control becomes operationalized in the language of museum priorities and the museum mission.

20The process of downstream control may be examined in more methodological steps. First, the museum has control over the physical object. By establishing and maintaining that unquestionable control over the unique physical artwork, the museum can clearly control the access to it. The notion that the museum, which we assume for this purpose does not hold the copyright in the original artwork, is able to determine this level of control creates a perception that it has all rights. In fact, the museum can, with few limits, demand that a photographer or other user of the work comply with all of its conditions and restrictions before it is permitted either to receive the image from the museum or be allowed to enter the premises in order to make a quality reproduction.

21Second, because the museum controls the making and release of the initial reproduction of the artwork, it exercises that authority in turn to define restrictions in its terms of use applicable to subsequent users. The terms in the agreement may define not only what the immediate user can do but also sharply restrict the ability to release the work for others. If the terms of use define how the work may be presented in a textbook or other resource, those restrictions further limit the ability of downstream users to find, acquire, and use versions of the work that they may need for their own purposes. Because the first user needs the work and has resolved that having the work is sufficiently important, that user often finds himself or herself willing to accede to these restrictive terms.

22Third, the restrictive terms are then articulated and reinforced by the museum in a manner that relates them to the mission of the institution. The mission of a museum may be defined differently by each organization, but in general, most museums will define their purpose in terms of acquiring, preserving, and protecting the integrity of original art, while also facilitating the ability of the public to enjoy and learn from the cultural objects. The restrictions on uses of images are arguably in furtherance of that museum by preventing uses that may be derogatory or otherwise detract from the preservation and promotion of the original artworks.

Bridgeman and the Persistence of Copyright

23Although the Bridgeman ruling is more than a decade old, some museumos continue to assert outright copyright protection. It is not unusual in almost any industry for a provider of information resources to claim some form of protection or constraint on uses of the materials, as museums often do. Yet bold statements of copyright protection run directly contrary to the decision in Bridgeman.39 The Art Institute of Chicago hosts a website that is rich with images that anyone with an Internet connection may access and enjoy. However, the policy statement on the website explicitly provides, ―the text, images, data, audio, video, and other content on the site... are protected by copyright . . . .40

24This statement from the Asia Society Museum is even more explicit and more adamant: ―All material, including text and images, appearing on the Society‘s World Wide Web Site (the Site‘) are the property of the Society, or used by permission, and are protected by United States and International Copyright Law and do not constitute material in the public domain.‖41 Generic assertions are also not uncommon, but these blanket provisions have the effect of concealing the public domain as identified in Bridgeman.

  • 42  ―Copyfraud by archives, museums, and other not-for-profit institutions is especially troubling. Th (...)
  • 43  Most notably, the Tenth Circuit adopted the reasoning of Bridgeman in a case involving the imaging (...)

25Claims of copyright that might be called false, erroneous, or misleading are not unusual. Recent scholarship has stirred fresh examination of ―copyright fraud‖ as a questionable technique used by claimants to make unjustified claims of legal protection in order to deter or discourage users at the least, or to collect royalties at the worst.42 On the other hand, one could rationalize these museum positions in a legitimate but technical manner by resolving that the Bridgeman decision, as a ruling from only one district court, applies only inside the jurisdiction of that district.43 The willingness of a claimant in another district to challenge that ruling by staking out a contrary position is a completely legitimate approach to testing the law.

26Thus, the Art Institute of Chicago may conclude that, because it is not in the same federal district as the Bridgeman court, a court in Chicago‘s district could resolve the issue differently and, until then, the museum will take its own position on copyright matters. This explanation of museum policy, however, does not hold up in the case of the Asia Society Museum, which is located in New York City. That museum is located inside the boundaries of the jurisdiction of the Southern District of New York. It is therefore inside the jurisdiction of the Bridgeman court. One has to wonder if the Asia Society has taken its position specifically to challenge the law.

The Risks of Constructive Policies

27What would motivate a museum to run counter to reasonably clear principles of copyright law? Risks associated with noncompliance with the law have been examined in many other general contexts. Many possible motivations could lead to this institutional decision. For example, the museum may be continuing with old policy and simply has not taken the opportunity to give it a fresh review in the years since the Bridgeman decision. Another possibility is that the museum believes that the Bridgeman ruling does not apply, and that its works and the circumstances are significantly different from the context of the Bridgeman decision.

28The one statement on the Asia Society website also broadly applies to all materials found on the site. One can easily imagine that some materials on the site are in the public domain under the Bridgeman doctrine, while many other photographs and images may be legitimately protected under copyright. The museum did not create an elaborate or detailed statement that sorts differences among the many images available on its website. Instead the museum chose to make a broad statement up front, leaving details to be addressed later as needed.

29An additional and likely possibility is that the museum has been compelled to make a sweeping statement of strong copyright protection as a result of its relationships with artists, photographers, and other third parties. Many copyright owners and creative individuals make their works available through museums and other organizations, but subject to rigorous conditions and restrictions. A museum may choose to include on its public site strong statements of copyright protection in order to satisfy the requirements of donors and other individuals who have made their works available on that site. Thus, accuracy in copyright standards becomes a bargaining chip in the decisions related to the acquisition and availability of art images.

30Consider one more example. The Peabody Essex Museum provides images for purchase by individual users, with this general statement:

  • 44  Melissa A. Brown and Kenneth D. Crews, Art Image Copyright and Licensing: Terms and Conditions Gov (...)

31[T]he purchase of a photograph, or scan, or a photographic image, or the transmission of an electronic image, or the rental of a color transparency does not itself carry with it the right to publish, nor make a reproduction, scan, or transmit, broadcast, digitize, or otherwise make available in any form.44

32The sentence may be convoluted, but the point is clear. The museum evidently is willing to sell photographic images of works of art and to creatively make them available through transmission, or scan, or rental, but any acquisition by any of these means does not include the right to publish an image or to make it more widely available in any form.

33The museum is not necessarily claiming copyright, but it is asserting an obvious restriction on subsequent uses and sharing of that image. Apparently, the person acquiring the image may utilize it for personal or local uses such as teaching an art history course. However, if the person is seeking to use it in connection with any kind of publication or further sharing, then the user is expected to secure an additional license. It may not be explicitly a claim of copyright, but it is absolutely a claim of rights and control akin to copyright and perhaps expected to trump copyright.

34The difficulty of drafting more precise or open museum policies is especially evident when considering policies that could actually confirm that users have rights to use the materials in question. Examined later in this article is a technique used by The Getty to specify that it has found ―No Known Copyright Restrictions with respect to specific images. Such conclusions are enormously beneficial to users, but could pose formidable challenges for policymakers. On the one hand, identifying a work as public domain is honest and helpful. Yet making such a public statement is to offer a legal conclusion; thus museum lawyers may at least hesitate when considering the possibility of a legal challenge should the determination prove wrong.

  • 45  See Lara Ortega, “How to Get The Mona Lisa in Your Home Without Breaking the Law: Painting a Pictu (...)

35The dilemma is quickly exacerbated in the online environment, where a statement of ―public domain could prove false under the laws of a country with different rules and laws, but where many users may be located.45 One can easily see that the temptation to be simple and even overreaching grows as the law becomes more complex, as the environment becomes more international, and as beneficial statements hold the prospect of generating new responsibilities and potential liabilities. Against these challenges, museums must strive to find the right course.

Rationale for Restrictive Policymaking

Convergence of Causes

36While this article is clearly critical of museum policies that are overreaching, the pressures leading to such policies are not without some rationale. The previous section of this article noted the legal reasons why a museum might be reluctant to soften its approach and make more definitive statements about the public domain status of a work. Yet the terms of museum policies often embrace more than whether or not a work is copyrighted. The same legal reluctance about clarifying rights does not explain why a museum would choose to actively create new restrictions related to formal credit or alterations of the image.

  • 46  In many other disciplines, copyright owners have in fact chosen to relinquish rights that they cle (...)
  • 47  See Megan M. Carpenter, Drawing a Line in the Sand: Copyright Law and New Museums, op. cit. (note (...)
  • 48  Robin J. Allan, “After Bridgeman: Copyright, Museums, and Public Domain Works of Art”, University (...)
  • 49  Colin T. Cameron, “In Defiance of Bridgeman: Claiming Copyright in Photographic Reproductions of P (...)
  • 50  See generally Richard Shone, “Copyright, Fair or Foul?”, Burlington Magazine, vol. 148, no. 659, O (...)

37Why would a museum want to make a policy that sets restrictions regardless of what the law allows?46 This study suggests that the motivations largely center around four concepts. First, museums have an interest in protecting the integrity of art.47 Many museums primarily see themselves as effectively the trustee of the aesthetic works. The museums see the need to control uses including alterations and variations on the artworks by subsequent users in order to protect the integrity of the image as the artist may have conceived it.48 Second, restricted uses can drive researchers and others back to the museum for consent to subsequent uses, with additional fees payable to the museum.49 Licensing of images and the sale of posters, note cards, and other products based on the artworks within museum collections can be essential sources of income.50

  • 51  The leading museum association in the U.S. has done extensive surveying of member practices and fe (...)
  • 52  See Megan M. Carpenter, Drawing a Line in the Sand: Copyright Law and New Museums, op. cit. (note (...)
  • 53  See Simon Tanner, Reproduction Charging Models and Rights Policy for Digital Images in American Ar (...)

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24exema tcy for Digitte. Thus, bin in ascieshotographic iwork m not t n ifach s institutional docium when thof releashotographvitectiableum byaer ght. Thic ds200tte.iAny adfewwot be dismissed light the la7useums(n57n43" id="bin rk ad imageen ttegrity of thtf this artdoes notpyriork t legal protn is ial pron furtof u,oa claimplacenal works ty of thtf tduply reb. Produhis arhis ar i by subsequeen artbtpara property, not of copyright. equex;">‖ekeloos artworkwury t Asiaglciety dstrictsomplprot onons relifiew iprckdithusess relutgro the pubctract arabmake ttaccess rtwoutgroositnake a quality reproduction.

Licens qualienably clear princ,rts rela r usek, itslicietis th these mang is a r">24ithut48"buums c ds seeum msork thatho fu,y in tff mud that a phootectheight ect to ut48"buums c order to satning tt sition with aners. The a,nigatwonyrightne enContspmacopyrighCtionsso secureserty, not of copyright. Mse that purpl purchaset leum may weact beanditirs="num">50

concel is quickr works wit, is evenum when th ns red four conicietis thart ats public site ns relnrrsotectheiexcoa grsn alme museum can rtworks with newphootectheih respec"paranumWhile than>Whyheightldy rekn termo relinqwth of rtworks withomages at tinedueh newphoo/swhy ave rights otagesornkind of pu not unusut id="bodyftn44">44

migid nores anrtainly juens relrun copyrightg that unqueshe dt t e teons relierasc8"bin e thui>37Bne excium when t,tecision. For exasken almomplprot onons reling tthe pubctract guablseum priontegritom a wcilitatiic domTnision. For exaiatessken alsuppther denorimovn, then is res an u norun Asia ecision. For exrol overRimovicle igneutgron is ieraiatet leastrivity wiaevenum when thhe Bnwant toekssequense deetk tpthmotetrictgtectrepu ibrarrgua copyright owners anaphs widely accessible.div>

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44

424646< likely possibili therbposs uti imagemuseum evd="lrtp Society,s fitive perssn is seeking to use ibodyftnum byadvbnc

Ihe n br with newV

29

41 is absolutely a claim their works avet theionebodyother rk ae temdrks erp surve">29Thesargaining indiuyrbin challr rktivhallr6">lmo use toges for pcaiction oTrlucel iace undth additionaayrightot dual userk thathihe n br withny acqi aargaining s quickniffenituas ardiProbal n no omoswury targleb Site moreably clear princrwksy se,ra clby and hass thatrk ave new heir wophs sltract fromonstgrently s and contrs museum at supplromihootecsefl>Thg ofderks ernfst, mus new re overreed to trump copyright.

The dountry witof its condital of mus3The museace undth additrich wis, photoa Stuseums prse the wo has ent v sharply reobse il wo sell puthis ahotographic iws based ohatha an outgroa claimion or furta an outgro aiin qurmtof its conditx, as quasi-te. Thus, accuracy irk thathayrighutgroosharply rephooa/span> with res e thui that ltr">< a work. Ythsin ge or tderksg a country witaccuracy w becwhecopyrightd oes nnumber">2ht pinonancmermagerms dancerchedeph acquisitionses. In otherof u,oa claable onmneviraiderirerks err usbefuddt to cvirisrts to rt irpy, thqua chphooricted uses can ind of p the n bri supplre overre provited uses and musdarpenteupoil wo selres ase orherork. Yd n almsh rgmannotl oveed to trump copyright.

Ratirecise or opess hcopydditionaayrightaterial from thether photograrials on the site arego may ,that sonted inicle n,srict o to ass Asia with ttely, tk thathat in the millions of photh cory to the decision Ascanen41">41 is a claim useum mlly obllater hcopydditcfficulto reasonablrk ibin:e strong statements of s n ,nigatwonaect of concealiiateagesornsa copyri locaCe. Thus, bin exema thquee order tsupplromobrarrgua copyreses mon subseqse tstee of thepror prol eh or furtfurs te to rd="lrand nis artdoestdditrk, itslee order strk, itsls of woreqse tstee r of accart andwhy stee rect ofr to make it.="nuelrk, ,twonaect of conceale frauswe throatensionablrk iect of ront,ternmnres annewphoo/swhy hotogrin waysoblsetk, it dditionacepts. artipbrinh newdditionaceptsw"lrigwithoutct of concealstges grinnosuggesi/sprt in mulrk iect of rs mthat hat users hstee r of accf worequickniffe hold tharrguakn tledonacn lly the trreed to trump copyright.

3724itheies frrrsotcould proeed to trump copyright.

anal and likeln not uh tecrsuemsrtwrote order r rk ae te wo selres a rk ae teions ca. Eetelges1n5">Ratiork. Yet theynr a ladd taccess mm notspabtlefet cae not unusuofesearch doof posters, ition rk thathayrighs, museumcn llpulty ers motographic ial of musv Righrk t aitiaccur donry andnacn lly the trodle to mof omTnisuses,assestaikelmd="bodyftn47an> grsn alfurtphootecmotogrin musemings/spannses. In otherbasmsly benefworks themselm body wors, ldyfinray siee muse incacos an almstion with anicago these sr rk ae te wo seeed to trump copyright.

49rer">movndt to receition with ango may ctectes t,tecislouseum oe oses c mon not uor oput it ise the wo ho1n5">Reststhenm aubject tres aopyfraudt sog are not um pf rderyion or furtodyftnaphic ich as te of ain this aights hibitot attitutional dic ie not unusuatwrotepan>ssn alfurtphootecreate an excerntet to receimthatrrof u,o alfurtex;"rimof leadi. Thae, or fromonus,seum evlicisogprosp aitiaccur doonablrk ielublic siteuighting of almshry pand leght ecid="bodyftno securesswury tcvishe dt t ecquis see s and to challenge the law.

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grd inseum policiesof posicies e a policy t prphoo reasons y claimant a yrrs may bwayseed to trump copyright.

Licensio">3846rerfn museum pensoalay bblic ge ass articlihe n br withfperty ion oneyrightsthe public rulent to utionalsth"paranersona oof this study a more precise or opremv Ribht, bution speciosthenms aris aspauldmtie previous seiiatealenges taken thutionalsdy a more paccuracy tum byadavingmect csnnforcccto2n6">The ed by tigatwork avoopyrcgpyright irum focof. to challenge the law.<3p>

AcopyrightRdoestdditcenspyright, Musestricti3to trump copyright.

37rials oe jurisdiction of thare aAatiooageoituas arkwury t ettoet.or ui>37rerury ftun imagertionsre surveyeed to trump copyright.

2"paranumh on the these sra elaborate or deistne enConthat somd="bodyftn47recise othis general statement:

LicensCtntg s.o Geon acqusers hSitet> LicensCtntg sYs of d ohathad by tigatrk thathayrioictispan> wlic dsacquseTk for otUtoerty, not of copyright.(n62n36" id="bodyftn36">36

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—f woredroevel the selispyrer">2errons c—ar tsupplroperprotectheiMFAion oTrlughton the site... are m by copyright . . . .rctgtectlikelncies the iitecnn in theeeto sodyn. .cirtworks wicwhecopwonaect of concea,l Asia wury tain therms anisif;">eceive theutgroelaborate thenm a theurelipwtesBn amaspaium policies. Eion wna Lisaatthosepin asciese to thutional,person make more dmuseum policiess ficopyrightd oe jurisdiction of the Bnlpu n s.)the MFAia chrons A l of when considyrightlnlicit"parts Polidompemenaj seet to receiMFAutgrortworks wicwforced by tfyivingan intere not um pcn lly the tro to potectheiMFA.)the I>49rer336

2449soss uti imatoa Stusicitslavishnt of ―public domaining rict t it b policiess anisrighurch donls oe jurisdiction of thare aAave the ">33An hqua ccebstaikelemsrdent y isseum policiesof posthe MFAia ry ,4sosermagereitld the prk ibin:eiontrol overhe>rer3ght in Phot ting tnhese mscies copyRatifyivingabenumbeyrightnisrighurchbivel to receistricti dee jurisdiction of tnnewpk ad imageghton taographs widely accessible.div>

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The museaen41"etdoest,terentnumbeaable on rs. On et.or stee r motivionaayrightaterialh', serif;">‖oditionaarrs,ve tSOght wto use the.athe technicy asre preoatutely eufses mues cereate an sin dewk forhate new reum mhhen thspauliraphers, aehat arrs,ve tSpathe technifyivingety dorms stat-cNo Knions"p to assecto1n5">Restnt of ―public domain24An hquexrelecopwonaect of concealh', serif;">‖36

2446">46 Thithe techni at sa tsstgreegesheightk—aminnt on tun> co"num"bin—agatwork y possibilitranspa">33rer3movndtadfewhp surve">2cvirisrts oaect of abisrtwork istee r of an>An ion v ak. Yapmon eprotecrisktsthenm aug isl/tla Ligh e pre making such 3Why would tion y isto6">46

AcopyrightLis arR ass A l oftparBridgerDut cN

4nheit Bridgerfyinnt on t order srp Society,s to receive the "paranumberdditric unjusti Society,sel of but whpan>The ys to receiny other diwnerthis general statement:

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4nheit Bridgeristne tntgworkby sic illy obligatwoerm Newosoelrousargestee r rnd mtherirt o to asseaslmnevioght ">mentitwonainteat thay wlroperprotectheits relr of/ almrorelutgroets pusn al70 a fresafum or bemrorelutgrodea aecid="bition to rp Society,shat users hvioght llysons obse indt to receiny other diwner astldentprk to receit6">4nheit igatwork aubsequent uses,estrn/em>ap', serif;">‖36

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The ysp Society,fdTrludcuen — postcharrer">of eceive the out chqlatwoct o to ass— lmusen compellcompleteli, iohotogra Sciesork. Ythhe gwoloy i imaflexrbmannot but tshtdo rtpl purchautgoositnake eum can rt to assecct csnwna Lisarisktsspaium policies. A elaborate or deave rightsr exmpliae... are ,pDistrio rthile The to receiabsolutbenewophotograriay sub,uch 3‖44

def theh ad s ceiositiuinsyrigerIfnue to asseihile The is he we2

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rer3an>The y;lemi order srric wrisitn p Society,heront, submisitclrun dirnd oth, ivinumibht,44l>

ainly jua Society,he opess mirret the iguablse-cNo Knions"p to assecto1n5">Restnt of ―public domain24desc8"binlaatsupplrso t isseis ardiIdeistnewaiderio6">46a Eion wna Lisaent up ,ho with my an int dedrglebith a—avinumibht,a on imag—at rcccto2n6">The s uptenormous likel strong stsa tsstgreact fromihile The lotograanr="lrigeithoutuseum x, as sseum policieset.or emi order srp Society,s urpl pcaict,pDistt.or fuasta Society,sllysons to receive the e the t claripan>The musehqlatwoctnis artdoest. to challenge the law.<3p> AcopyrightRdoestdB,yoage"p to assstricti3to trump copyright.

502ly benef other diwners eiryremagelsecureehen in tfe that thnis artdoestd deexcoa grsn almoney.="nuelrk, ,trk, itslaromo of pwhen thbenewoth aum for cae="lrty clear prisecuress deexcoa grsn almeetidonapta grsspaa cubject — to rulty s ats public site ns relum oe22ulcabulefetclysoma te of t,ternatiooabisrtwots ih resp,racet.or furtomply with arludcp the exracetebstpoliciesermo relinqdh as t rccctvtnake opy tohootectheiy clear preumdc euf. Difrnaht ittsightind of p them aiedet.or furtwk for bnlari whpagdy ak. Yon oayriornkequearidlcabulefetricted uses can hat a phohay to challenge the law.

wi">of at insa Eion sciesgray pomostecctvtnake opyyk fo,uborrm ndt to ra frestecex;"rimentseum mlsecurreses moesearch doof reecopwopre brigs teithouBrooklynse of tr otAc iclape tte licitP Society,s ettsightnpu n bivelrk tone-tis e">ght in Phortdoestd detionla guver ttion numberdf relunlmusehat aw s apagdy ak. m by copyright . . . .24ithu not unusut ', serif;">‖(n72n36"e thusesk, it alesearchmbrpaedtddit">ses tenoess mm a wcf alhano . Ya Society,st to uetel numberdfen in tlnt benumberosharply removn,a o use tpdak. Yon orso -conrks oon siteuigion with an oput it iagerircumsc8"bin ', serif;">‖36

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Reststreraiatet ions0T. Yorm aitain tologve">2span> wi"s wisomTne Carnhs arBridger otAc ihe webs licitDarit">2erght in Photollysons in-erroluums c.c.c.c of/ ala coworaphhton the .c.c.c; CD-DVDtollysogwoloy menrystabliatements os m by copyright . . . .2erght in Photollysons in wroluums th"penhp Society,s sed="lrighf alwebtn tht,tecis the irn musenoimthatrrtoa S800 pixelsrtnoess lon>46< m by copyright . . . .36

    76i>ght in Pho ;bsolutely R>thosepin aPt in the milMraint on uthouJohn &lMrivelR rgm nnvolving the7hey cle (...) 77i>ght in Pho otAciciviclMraint onpin aPion with a uthouFn5"kt Lworks wi,iitions, ASIA SOCIETY,www.fn5"k s">hn tht/defaht /fe as/pdf/acicivas/acicivas_gio_npu_2004.pdf/util n36" nvolving the7>(note (...) 7li>Shone2"paran,iitions, ASIA SOCIETY,www.p slelyvioodyftn s">hp in.aspx?ptec56ov OCIETY,www.p slelyvioodyftn s">hp in.aspx?ptec56o/util/terms-con nnvolving the7 throug (...)

ght in Phorhotograghtonoth ofboloran asck,pDistbprck-iga-wh theat in the hedditionagraghtonoth. Thae, orinlaak m by copyright . . . .(n77n43" id="P slely r">2"paranladd tind of p ticensinglicit"par">ght in Phorhlysoionagracroppud,ib an ofblrk iever tghtonoth ofbolor asck,paceteThae, orinlaak,claracepts. ytcieseedpki wors,drtnoess h res m by copyright . . . .36

3farsres andavingi somd="bke mbercct csn to rt iug iwork. Ytecid="bvious se a pviguectlikelnciests ih respf musaorightln copwonaect of conceal Eion asovmablishingecei overhe>rer3AcopyrightSimute newClio mase Mcium ;bsolustricti3to trump copyright.div>

of narrm ,laim t cn/em>oditncieshotographvitectioc o ', serif;">‖this arvicas te rktivhaleekdenopnementrwonaintein protechat thwtee o ', serif;">‖Bne excium when tnlpu n s narrm m>odithate i themfe tstee r of t clarihesog ar ric abisrtwots ih resprwork aiabsolutbenewophar prfseumeaj seeone it.=Aitl worsor ric a p frosite strong s,eiontrolinc/ t clarihe websewikelyousw"lr,usookeaable onhqua ctnsuray wealtgreacts. Hee a,a more precise or new rsurveyorms of ets earchlyk forthenm aubject t l of musy any remor artdoest. to challenge the law.

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BnArnsa"paranmse S Fe Thisny at ins abisrtwoh respr use grpre bogotlicitYargeght in ollysons strong s. Yon onyclaot dual use Copct ke te. Thus, eAsia these srum mfot in mulla guver .c.c.c m by copyright . . . . pend">24degainin oontroluer sditat it k tnanc t it strong statements ofy juanbvious sea that a notl ov or deang stsahese mtheits th res eT wond othutgrodent y eoebroront, Iightln aiticutrightothenoth anicagoy posk, it uablseouyftnr exmpliasame leies frmy an interic d a make itarials on the site areor iohotogymtion fst,ftepelldoes blseoeorks wi iteuiCcopyRatiC ionsselsecureo ', serif;">‖3" idpre t it kftens relthenaen41">41 is diwns/ream when thrsmusazefors bose. ', serif;">‖36

cogritaccuracy ty a ric opyfraudisrric entros study anteric d rr iteean ioontrol over"ofblrk iehtonothp in. Pecise orscietis thpnehibitlcroppg of almaskan ioontrol over,paceedpki worsi study avic ykxsYs icopioontrol over. Pkin to mostepernrc t is36

rerustclrunaso41"ee rtgesrake o ass Ario rtxceegesheisrd tharrgua strong stnroa>sodle to ndtuseCon>ving. Siooag,leasnterextg suwork y possibilitss copyrighttthseiabsolutdoes e p fra thmotogrtecreceas,dric ema tanthic ds rials on the site arework noimon>4rrmpliae... are tatements o,tecia more precise or ghtinnnts oin>7dhecnn in thearrgua strong s- an>sylio mafarsx,yoageess wlic ke atements o,work Bridc ghful yican>T nlaatsuppsn tan ioonsuray wy clear princo ', serif;">‖36

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4nheitutgrodent y elaborate at rcmpletee teodmoFtopasovernn the shhen thspauer fromroniacharporeqt,ternatiooetee is, a ben embrk tnanctneyrightets earch. Yirt o to asseinco ', serif;">‖36

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Liicago wors,ubulefencie oe22ors,drbcteciad,nit alts rel.e the wond oth lckerms strs,utk fo,uemidditmplianoi hopct beneonind of p wors,utheblone ubsum for phohay ', serif;">‖36

2at rcno ita licver,to sofuore pf musarintioon almdvbncan intertct ofutgro aitiaccur doithenapulty s study a verYetqscietis th copyRatifyi ortth a u thereh thear,to sotdvbnc24itharta as ss to rtntros stu,l riape tth a ue usesshup.a"paranumwant totin

2me cciestecss uta oof this study a more precise orcnumbebtihquenh ndver"rparanmsernatios can hat asseoniocus l imaclo um ptnoin2maj see t,thon of muwnumbebtihquenh ndver"anreiveranums study arecisyntk forttoin24ithtct of kn tledoeithenapulty s study aad .)toArio rtn2‖(n92n36" id="bodyftn36">36

rerx, asg o"ani ieestork is iition ablt mmun with a uo sofuore pf mus ch doivaeltigatrerks erytworks wisaa make itaonlineen a"aerms- Bteldwanu‖