At 08:42 AM 2/24/97 -0600, in museum-l Janice Klein wrote:

>To play devil's advocate:  Isn't maintaining the collection and supplying
>information to researchers what we are already employed by our institution
>to do?

Yes, indeed, but there is a difference between a museum's obligations to
the "object" and its right to administer the "intellectual property" that
exudes from that object.  The former needs attention to its physical
welfare, the latter, once copyright is no longer an issue, the law of
public domain frees to wander where it might. Captions and other
identifying tags are themselves not copyrightable, so unless a museum can
create unique intellectual properties with which to surround their objects,
or services provided by staff; there may be little or no protectable value
in a good part of museum collections.

Indeed, recently there has been discussion in the courts regarding the
relationship between licensable property and the public domain content that
lies within it.  In NBA vs. Motorola, a case in which the National
Basketball Association claims ownership of the game scores that emerge from
the games it presents and owns, it has been held that the scores are facts,
and as facts are not copyrightable -- they are in the public domain and can
be used by a company such as STATS which broadcasts these scores (without
license) to subscribing beeper holders.  In addition, I understand that
there is case law which permits public domain portions of copyrighted
materials to be extracted and used when such protected materials are the
only source through which the public domain content can be accessed.

In other words, in ordinary cases contract arrangements to supply
licensable property which includes a public domain portion, are assumed to
preclude access to the public domain only when that public domain content
is available through other means.  No contract, as I understand it, which
effectively preludes access to the public domain, except by such contract,
is fully valid.  In such cases the public interest has been held to
supersede that of rights holders.

If I am correct in my reading of the discussions (This is all from
CNI-Copyright.), the monopoly interest in any individual public domain
image that museums generally hold may be subject to public unlicensed
access through whatever means may be available to anyone who needs the image.

SOURCE:
>There are certainly several cases that hold it is not a copyright
>infringement to reproduce copyright protected material in order to
>get at unprotected public domain materials ...
>
>-------------------------
>Dan L. Burk
>Seton Hall University
>[log in to unmask]


On another note, assuming that the above argument is defective -- and it is
not at all fully accepted (just arguable) -- there may be additional
problems in store for a museum that wants to control what happens to its
photographs.

When a scholar writes the photo department of a museum for research
photographs, what is usually sent is a photo with an admonition stamped on
its back saying that it to be used for study purposes only, and not to be
published without the author first having received permission from the
museum to do so.  The problem is that such a transaction is probably not a
contract (no mutual agreement, no consideration) and cannot be used to
limit what is done with that photograph (again assuming that the photo is
of an object in the public domain).  The statement functions more like
those worrisome phrases found in the front of books: "No part of the
contents of this book may be reproduced without written permission of the
publishers," it says in my edition of Janson's History of Art, a
phraseology that seems to expect the reader to overlook the permissions
implicitly granted under "fair use."

For such museum images, if the admonition is not legally binding, and the
public domain content is free to use, then there is little a museum can
practically do to keep a work from being published without permission.
Under such circumstances, even if the warning were legally effective, it
may not last past the original owner of the photograph and in any case will
certainly not last beyond the time when the photograph itself (as a
copyrighted item) passes into the public domain.  Public domain archives
made up of original photographs and reproductions in books may soon eat
into whatever business in photographs the museum as established for itself.

Under such a dire scenario, what is a museum to do?  First of all, museums
must supply images that are finer than what can ordinarily be obtained
through other channels; and these images should be provided only after a
valid contract for use has been signed.  Museums may take a hint from the
auto industry and plan to make older photographs obsolete.  A museum may
also wish to establish means that will hold scholars and researchers to
predetermined usage restrictions.  Photos and electronic files supplied for
research purposes by museum may be limited to a quality insufficient to
publish.  Such restrictions, certainly unenlightened, in this writer's
opinion, will only serve to exacerbate tensions between the museum and the
scholarly community.  A more practical and politically effective solution
may be to sell photographs to scholars for near cost with implied license
to use freely in scholarly studies.  Such images may be limited to certain
types of reproduction and publications.  Obvious for-profit enterprises
will continue to pay for photograph rights -- and these users, no doubt,
will want to use the highest quality images available available to them
under license.  The real intellectual property museums have to sell may not
be the images, but rather the research and opinions that are attached to
the images.  Traditionally museums have been loathe to let this information
out to the public, but this rich store of intellectual content may hold
unimagined treasures.

Rather than holding museum image users at bay until they consent to obey
certain restrictions, a more open policy -- one which awards and respects
scholarship and which has faith that scholarship will improve the
reputation of museum-held lesser-known works and catapult them into the
public consciousness -- may have unexpected positive benefits.

As far as copying public domain fabric design is concerned (the issue that
started this thread), let the public domain be what it is supposed to be,
if not, we'll soon have to pay royalties to highlanders for our tartan and
plaid scarves.  The fabric of law is much less tightly woven than the
fabric of tradition and mutual respect. In an overly licensed world, it is
quite possible that the common cloth that binds us together will fall apart
at the seams.



================================================
Robert A. Baron,
Museum Computer Consultant
P.O. Box 93, Larchmont, N.Y. 10538
mailto:[log in to unmask]
See "Copyright and Fair Use: The Great Image Debate"
http://oregon.uoregon.edu/~csundt/vrcfu.htm
================================================