At 10:06 AM 11/3/98 -0500, Barry Szczesny wrote:
>As far as Van Gogh's works and the Mona Lisa -- these works became part
>of the public domain long ago.  However, photographic and other
>reproductions (typically by the museum) of these works are
>copyrightable.

With all due respect to Barry, who is always up to the minute in his
knowledge of copyright, the case of "reproductive" photography is still
being argued, with (as far as I know) no court opinions to say that
straight-on non-creative reproductions of public domain works are either
copyrightable or not.  It is true that every museum (for obvious purposes)
claims that their reproductions bear the protection of copyright. But do
these works satisfy the originality requirement of the copyright act? Those
that reproduce sculpture and other three-dimensional objects, to me,
obviously do. But those that reproduce graphic works like woodcuts and
engravings, in my opinion obviously don't. Those in the middle, including
two-dimensional painting, deserve to be argued about.

In my opinion the reason why a "public domain" is created in the first
place is to place in the public trust works that are expected to be free to
use. But how do you use a public domain work if every copy of it is
copyrightable? If a work is in the public domain and no access to it is
provided to create reproductive photographs of it that are, in themselves,
usable as if they are in the public domain, then it would seem that the
motive for creating a "public domain" is empty or simply not being honored.
 To say that such works in the public domain are now free to use if you
happen to own them, I see as a breach of the very notion of "public domain"
-- a cynical breach at that -- "let them eat cake." In the public interest,
essentially reproductive images should consequently be treated as if they
have no copyrightable content -- even when it can be argued (as I have
often done) that the technique of photoreprography encodes a variety of
aesthetic decisions on the part of the reprographer.

How do museums, then, control the use of their collection? (Assuming that
all museums actually do have that right.) How do they make money from the
rights of ownership if they can't do so from the rights of copyright in
reproductive images of the works they own that are in the public domain?

In answer: They do control publication quality images. These are licensed
for use by others. Copyright is not relevant in a licensing situation.  The
publishers and all others who need high quality images are served by
honoring licensing agreements.  It is the reproductions that come of these
-- the individual reproductions -- the ones found in books and other second
generation habitats -- not the copyrightable compilation of reproductions
-- that should be considered to be freely in the public domain.  These will
feed a secondary market of individual users, education and inexpensive
publications that do not need to pay for the high quality licensed images
the museum vends.

But what happens when the end user no longer is permitted to buy such works
and is forced to license them, to sign away his right to harvest the public
domain content of what he has before them?  That day is coming and, to me
that is a frightening notion.

Robert Baron
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