At 12:28 AM 11/16/97 GMT, you wrote:
>I am a law student currently writing a directed research on the issue of
>Museum Liability for Copyright Infringment -- of works displayed
>(e.g. an appropriationist's copyright infringment), and works copied by
>the museum (in catalogues, or reproduced on t-shirts, stationery, and the
>like).
>
>So far, my research has yielded no reported cases and no articles in
>any major publications.  The only cases which relate to this topic are Rogers
>v Koons, and Dauman v Estate of Andy Warhol, because galleries are named
>as co-defendants.
>
>If anyone has any comments, experience in this area, or has read anything
>that might apply here, I would greatly appreciate your help. Additionally,
>I will be writing a paper next spring on Intermuseum Loans in the EC, and
>would welcome any information on that topic as well.
>
>Thank you.
>
Bari B. Brandes:

I doubt that you will find very much in this area that has made it to
court. The amount of loss incurred by museum infringement is generally so
low as not to make it worthwhile to do anything except to send lawyers'
letters.  Thus most of the information you will find is anecdotal.  For
example, I heard that Jasper Johns threatened to sue the Museum of Modern
Art in NYC for having produced a jigsaw puzzle with one of his compositions
on it.  In another case one museum infringed on the photograph of another
when it used it on the cover of their member's calendar without permission.
In this case, nothing was done, but when someone wanted to publish the
calendar cover, the museum owning the underlying work refused permission.

There is also the famous (or infamous) case of the Rock and Roll Hall of
Fame preventing a photographer from selling posters of its building. This
would be allowed under copyright law, but the museum claimed that the
picture was a trademark violation. There was a poor decision in favor of
the museum.

There are several cases of interest regarding artists that did make it to
court. One of these, Romm Art Creations Ltd. v. Simcha International (see
my article in _Copyright and Fair Use: The Great Image Debate_, n. 10, for
the full citation) held that an artist's style could not be copied.
(Another bad decision.)

There was another case against Hustler Magazine in which Hustler was sued
for reproducing without permission certain art postcards.  Hustler was
found to have used the material fairly.

There is a story about an academic press that wanted to use a manuscript
page from a museum on the dust jacket of a new book on manuscripts, but
wanted to impose the title of the book over the photograph. Such
superimpositions were in violation of the museum's reproduction policy, so
they refused permission.  Obtaining an image from another source, the
academic press published it anyway, claiming that medieval manuscripts were
in the public domain and that photographs of them, being inherently
reproductive and not original, could not be copyrighted. As far as I know,
nothing happened.

The problem with your topic is that as far as museum work and other
scholarly enterprises are concerned, there is another ethic besides
"copyright" at play.  There has been, in the past, a "gentlemen's
agreement" or a traditional method of working which ignored copyright
altogether, saying, instead, that works of art could be reproduced for
scholarly and educational purposes.  Sometimes this tradition happens to
coincide with copyright law (Fair Use); sometimes it doesn't.


================================================
Robert A. Baron, Museum Computer Consultant
mailto:[log in to unmask]
http://www.pipeline.com/~rabaron/
Editor, "Copyright and Fair Use: The Great Image Debate,"
VISUAL RESOURCES, Vol. XII, Nos. 3-4.
See: http://oregon.uoregon.edu/~csundt/vrcfu.htm
================================================