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 [log in to unmask]