On Apr 29, 1996 11:22:56, 'GP Stemm <[log in to unmask]>' wrote:


>Has anyone had experience with selling "reproduction rights" to artifacts
>without selling the artifact itself? (Especially in the case of an
>ancient artifact, where the artist or creator is no longer known). This
>could conceivably work in one of two ways:
>
>1. A museum sells a work of art or an artifact, but retains the exclusive
>right to replicate it.

If it is possible to reserve the right to reproduce a work of art said to
be in the public domain, I'd like to know what "public domain" means in
such a case.

According to one argument, if a public domain object is photographed, these
photographs are themselves copyrightable.  Although the work of art is in
the public domain, the photographs of it are not.  Thus, by limiting access
to the object, the photographs of it become the de facto object (a
surrogate object)  that allows the owner of the photo rights to control the
reproduction rights of the object.  If access to the object cannot be
controlled there would be nothing to prevent another photographer from
taking his own copyrightable images of it.  When you see a sign in a museum
that permits photography of its [public domain] artifacts for private
non-commercial use only, that warning, I believe, is like stone lions at
the gate.  Intimidating, but no bite.

Another, contradicting argument states that most "reproductive" photos of
objects in the public domain cannot be copyrighted at all because they do
not possess the minimal degree of originality and/or creativity required by
law for copyright.  According to this thesis, even though an object's owner
may prevent access to it, any photo taken of it is fair game for others to
use as they see fit.  Control of reproduction, in this case, derives from
the ability to control access to and to control the use of high quality
originals.  Publishers in need of high quality images will ignore the
public domain status of an object or of photographs of it and pay the money
for access to the original transparency.  The value of these objects lies,
not in the ability to control access to them, but in the ability to meter
access to high quality copies.  Technology has made it possible to carve
out a separate Right of Publicity.

[I'm going off on a tangent, here; but, bear with me.]

When the "high quality" original is digital, and the object and the photo
are in the public domain, as may be the case with, say, the photos acquired
by Corbis in the Bettmann Archives, how does the owner of the digital
original preserve his investment in his intellectual property?  Can a
person claim ownership of a scan?  Is a scan copyrightable?  In other
words, does a scan possess the minimal degree of originality to pass
copyright muster?

I'm not going to answer this question; but I will say that the answer "yes"
or "no" may not be relevant to the issue here.  Usually, laws are written
and interpreted not on the basis of a philosophy to which one subscribes,
but on the basis of what social or economic end one wants to achieve.  Do
we want corporations like Corbis to retain value in stock like the Bettmann
Archive?  Does the fact that they have value in it, that that value
preserves the archives and makes it available, provide sufficient warrant
to grant them the necessary protection to market this intellectual
property?  Will their control prevent its use or prohibit its use by those
content to use pre-Corbis images?  I think that when all is said and done
we'll decide that the archive does deserve some protection, and that that
protection may be through the unique conduit by which potential users find
the images they need.  It is something like the yellow pages; the numbers
themselves can't be copyrighted, but the system by which they are arranged
-- how you find them -- can.  The access system, plus the potential of
using a high quality resource add up to a useful and marketable property.

I was told once that the core of the Bettmann archive derives from the
public picture collection of the New York Public Library, a picture
collection that anyone can borrow and publish as they see fit.  Let's say
that a "public domain" publisher, like Dover Books, whose business it is to
provide public domain images for others to use, decides to publish the NYPL
picture collection.  Now, if you were a publisher and needed a Bettmann
image, where would you go?  To the Dover reprint or to the Corbis archive?
If you were a student, and needed an image for a paper, where would you go?
 Each user will forge his own path based upon the criteria of the moment.
The publisher may pay for access to the proprietary database and save time
while buying a higher quality original.  The student may check out a Dover
volume, while using index and thumb to locate his image and a xerox machine
to grab it.

It seems to me that the "public domain" provides an important and necessary
path to the free use of the creations of our society, but the public domain
need not be the only path, and may not be suitable for all users and all
applications.

Our copyright laws provide artists, their assignees and heirs with a
virtual, but limited monopoly over the use of their works, but it is not a
monopoly that exists in perpetuity.  I believe that the concepts of "public
domain" and "fair use" in our society creates the environment of
competition needed to create and sustain alternate sources.  So when
copyright runs out, we should all understand that the monopoly has ended
and competition for access has begun.  There should be no way to retain an
exclusive right to replicate public domain objects.

--

Robert A. Baron
Museum Computer Consultant
P.O. Box 93, Larchmont N.Y. 10538
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