Museums Seek to Protect Art Images on Internet
by GEANNE ROSENBERG
Georgia O'Keeffe's red hills, bleached bones and poppies populate
countless sites on the Web. But nary a landscape, skull or flower can
be found on the cyberspot belonging to the Georgia O'Keeffe Museum in
Santa Fe, N.M. This simple irony illustrates the quandary in which
museums find themselves as they assess the opportunities and threats
presented by the Internet. O'Keeffe, whose work is ubiquitous on the
Web sites of scholars, poster sellers and art overs, is not alone. The
works of legendary figures of 20th-century art, from Kandinsky to
Chagall to Klee, pepper the Web. With everyone else feeling free to
publish these images in cyberspace, what holds back art museums?
First, uncertainty about the legality of posting images which often do
not belong to them -- even though the artworks themselves do. Second,
fear that the Web's raw power as a copying machine will hurt the
quality of the art and the commercial rights of the artists and their
heirs, who usually own the images. The rise of the Internet has forced
museum directors to grapple with an old problem in a new and confusing
universe. In cyberspace, it is unclear how best to balance their twin
missions of making art available to the public and protecting the
value and integrity of the art. "We regard the Internet as an
opportunity to educate a new generation of potential museumgoers about
what awaits them," said Harold Holzer, vice president for
communications at the Metropolitan Museum of Art. "It's another tool
for reaching a wider audience." Some legal experts do not take such a
sanguine view. When museums carelessly publish art on the Net, "they
may be committing what I like to call 'cybercide,"' said William
Borchard, a partner at the law firm of Cowan, Liebowitz & Latman and a
member of the art law committee of the Bar Association of the City of
New York. "They may be either killing some of their own ability to
make money or subjecting themselves to liability" -- such as that
arising from infringement of the original artist's copyright. But in
an era that has seen fine-art images migrate to posters, and from
posters to T-shirts, and from T-shirts to canvas bags, the concern may
seem misplaced. In the case of 19th-century artists and their
predecessors, back to the cave painters, no protection is needed:
Their art is already in the public domain. But in the case of someone
like the modern master Henri Matisse, things are less clear.
Generally, works published more than 75 years ago are in the public
domain in the United States and can be freely reproduced, according to
Jane Ginsburg, a professor at the Columbia University School of Law.
Works published since then may or may not retain copyright protection,
she said, depending on factors including whether the work is foreign
or domestic; when and where the work was published, and the date of
the artist's death. To add to the complexity, an image that can be
legally posted in the United States may remain under copyright
protection in another country -- an important detail given the
Internet's global reach. In the case of Matisse, other factors come
into play. Under current laws and treaties, the copyrights to some of
Matisse's work, owned by his heirs, will not expire until at least 50
years after his death. (Matisse died in 1954.) Other Matisse works may
already be in the public domain.  So until the potential risks and
rewards become clearer to museums, some are choosing to wait. The
Whitney Museum of American Art's permanent-collection Web page is now
almost completely devoid of images, partly because "we are taking the
time to do image clearance," according to text on the museum's Web
site. At the Museum of Modern Art, Mikki Carpenter, the director of
the department of photographic services and permissions, said, "We
check with our legal counsel before we post anything." Similarly, at
the J. Paul Getty Museum in Los Angeles, whose collection includes few
paintings created after 1900, any questions about copyrights for
digital images are directed to Christine Steiner, the secretary and
general counsel. Copyrights to most of Georgia O'Keeffe's work are
held by the Georgia O'Keeffe Foundation, which has refused to allow
Internet reproduction of the images it controls. "I think we're like
most institutions," said Judy Lopez, an assistant director at the
foundation. "We want a clear picture before we start working with it."
But other museums have moved ahead to publish art on the Web. Howard
Besser, an adjunct associate professor at the University of California
at Berkeley and an expert on digital art, said that many museum sites
were assembled by "some young, gung-ho volunteer" unfamiliar with
intellectual-property issues. Even for those who are aware of the
issues, the distinctions making some images eligible for publication
are unclear. For instance, the Georgia O'Keeffe Foundation says it
owns the copyright to O'Keeffe's "Cebolla Church," painted in 1945.
Its executives say it has never given anyone permission to reproduce
an image of the oil painting on the Internet. Yet a reproduction is
posted on the Web site of the North Carolina Museum of Art, which owns
the painting. According to Joseph Covington, director of education of
the North Carolina museum, the site was constructed with the
understanding that the museum did not need permission for images of
works created before 1978, when revised copyright laws became
effective. However, some museum law experts maintain that an O'Keeffe
work created less than 75 years ago retains copyright protection. The
Fred Jones Jr. Museum of Art in Norman, Okla., published a
low-resolution image of O'Keeffe's "Cos Cob," a 1926 work, on its Web
site without first obtaining permission from the Georgia O'Keeffe
Foundation. Gail Kana Anderson, assistant director and curator of
collections, said this was a "fair use" of the image. One solution to
infringement worries is watermarking or branding art images so they
can be traced to the source. Copyright holders are increasingly
requiring watermarking before they grant permission for digital
reproductions, said Janice Sorkow, director of rights and licensing at
the Museum of Fine Arts in Boston. To do otherwise, she said, is like
sending "your dog out on the street without a collar." The unnamed
publisher of the Georgia O'Keeffe Online Gallery writes on the
gallery's Web page, "If any of you wonderful people want me to add
something to the site, let me know. I'll be happy to steal images from
other sites!!" But widespread copyright infringement on the Internet
will not last forever, predicted Steve Davis, president of Corbis
Corp., a company founded by Microsoft's founder, Bill Gates, whose
digital archive of images was gathered in part through nonexclusive
licenses with museums. "Once there is more revenue coming from
publishing on the Web, there is going to be a higher level of scrutiny
from intellectual-property holders," he said.

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