On Sep 23, 1996 22:10:37, [log in to unmask] wrote:
>On Mon, 23 Sep 1996 08:41:15 +0100 Murph the Surf wrote:
>>I've found no examples of U.S. courts upholding the copyright on
>>photographs taken to document an item in a collection. They aren't
>>considered original enough.
>What you have in mind is a photograph of, let's say, a
>painting with nothing else in
>the frame. An original photograph of, for example, a group of
>related objects, however, is copyrightable.
The answer to this question seems to hang on the degree of originality and
interpretation brought to the documentary photograph. Reproductive
photographs of sculpture, architecture and other arrangements, would seem
to have the greatest chance of maintaining a claim of copyright, while
slavishly reproductive images, of, say, a woodcut or other graphic work,
may not be deemed copyrightable -- that is, if the courts are ever asked to
decide on the question. The cases inbetween, it would seem, are up to
dispute. Is a photograph of a two-dimensional painting merely a
reproduction without independent creativity? or does the technique,
lighting, materials, skill of the photographer and the ambiance created,
somehow result in an "interpretive" historically-bound product? There are
multiple answers to this question that tend to vary with the role of the
observer. Photographers and object owners tend to take one point of view,
while visual resources curators take another.
For literature, the answer is easier. Produce an edition of Moby Dick
based on an edition in the public domain, and there is no question that the
text of the edition is free of copyright restrictions; but, translate it
into, say, German, and the translation is protected. When we try to apply
this principle to the visual arts, the answers get confusing. Is a
photograph more like a translation, or is it more like a republication?
How people answer this question tells us a lot about how the visual arts
are assessed and valued in our society.
I've always found it curious, that on the CNI-Copyright listserv, where
lawyers and publishers, among others, spend their time arguing fine points
of copyright law, most discussions of the copyright of images eventually
slide into questions of the copyright of text. How to apply copyright law
to images must be an issue that is too slippery or that makes the usual
gang at CNI-Copyright uneasy. At some level they must know that images and
copyright are immiscible phenomena.
Some of these issues, and other questions regarding the copyright and fair
use of images are discussed in a series of essays in an upcoming number of
the journal Visual Resources, to which Amalyah Keshet contributed an
important essay on the copyright and rights management of museum images.
Individuals wishing to be informed of the availability of this collection
of essays may send their electronic addresses to me to be placed on the
announcement list.
Ms. Keshet reports in an earlier note on this thread that her museum does
not lay claim to the copyright of objects in the public domain, just to the
photographic reproductions of them. But many museums, while not claiming
copyright to such objects, do try to control the distribution and use of
images of these objects, first by licensing their own images (which is
their right), and second by attempting to control images taken by others,
either by limiting photographic access to works on public display, or by
stipulating on brochures or elsewhere that photographs taken in the
galleries may only be used for personal use.
It would be interesting to investigate the legality of such restrictions,
for, on one hand, it would seem within the realm of rights of object owners
to control access to and use of their objects, while on the other hand, the
public trust in which many of these objects are placed would suggest that
it is wrong to treat them wholly as private property.
--
Robert A. Baron
Museum Computer Consultant
P.O. Box 93, Larchmont N.Y. 10538
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