Do copyright and contract licensing policies adopted by art museums to restrict access to reproduced images of original artwork constitute overreaching? In his article, Museum Policies and Art Images: Conflicting Objectives and Copyright Over-Reaching, Dr. Kenneth D. Crews (Adjunct Professor of Law and Director of Columbia University's Copyright Advisory Office), explores the idea that while art museums have legitimate reasons for imposing restrictive policies, the broad and varied requirements often exceed their legal rights under copyright law.
Background of the Study
In 2009, Dr. Crews was awarded a grant through the Samuel H. Kress Foundation to gather data regarding art museum policies from fifty U.S. museums, examine their similarities and differences, and identify ways that the institutions respond to issues addressed in license agreements. In his article, Dr. Crews identifies the dichotomy between the museum's role in advancing awareness by allowing scholars and the general public to have access to art, with the protections these institutions employ so that they may maintain control over the rights to the artwork that they help put in the public domain. Dr. Crews highlights several policies that overreach the natural protections of copyright, but also takes pains to offer an examination of why museums feel it necessary to do so while highlighting alternative methods employed by some institutions to reduce the degree to which this overreaching occurs.
Art in its Reproduced Form
Dr. Crews identifies museums as gatekeeper to art and art images, fulfilling a crucial role in advancing public awareness of art. He discusses that one method of accomplishing this is to allow for accurate reproductions of the artwork held in their control, including photographic images, to be made for commercial use. While there is a high demand for access to art images, such access can be costly for museums. As a result, there are many instances in which, under the guise of copyright law, museums create policies with restrictive conditions over reproductions. According to Dr.Crews, while this area of copyright law is unclear, museums appear to be overreaching their legal rights.
Using Copyright Case Law to Employ Controls
While museums may not have outright ownership of the original works, Dr. Crews points out that these institutions often enter into contractual agreements with estates for the exclusive rights to exhibit and display them. Among those who seek permission to make reproductions of collections under the control of museums are photographers, scholars, and for-profit organizations. But, the determination of who has control over art reproductions, the owner of the original work or the photographer, is the subject of much debate. To guide this discussion, Dr. Crews points to case law from Bridgeman Art Library v. Corel Corporation, 36 F. Supp. 2d 191, 200 (S.D.N.Y. 1999), where the court held that photographic replicas of paintings are not protected by their own independent copyright. In its opinion, the court stated that such two-dimensional reproductions were "slavish" and failed to meet the originality requirements of copyright. Dr. Crews explains that museums often rely on this opinion in order to assert control over the photographic reproductions of their original works.
However, Dr. Crews argues that the understanding of photographic reproductions by the Bridgeman court is limited. He states that even in a two-dimensional recreation, the photographer employs significant creative license such as adjusting angles and lighting when making a determination on how to capture the original work of art through the lens. In effect, museums ought to have no right in the reproduction, as that is an artist's representation of the original. Further, Dr. Crews notes the irony that while museums claim to have an automatic right in the reproduction, these institutions often include terms in their policies that any photographic reproduction created by the museum is to be covered under copyright as an original work.
The Need to Establish Controls
Beyond perhaps a misplaced reliance on copyright law, Dr. Crews identifies four motivations
for restrictive museum policies: (1) maintaining integrity of artwork; (2)
making a profit; (3) adhering to donor requirements; and (4) earning credit. Dr.
Crews briefly discusses the first two motivations and spends more time focusing
on matters surrounding donor requirements and credit.
Donors of artwork often retain their copyright, should it exist.
However, museums are in physical control of artwork, dictating when it
will be shown, in what manner, and for what duration, so long as their decisions comply with donor restrictions. Dr. Crews suggests that in order to obtain more important collections,
museums are more likely to comply with restrictive terms required by donors that impose limitations on end-users. At the same time, however, museums seek to ensure that the terms are favorable to the public. Putting a particular piece or collection of art on display in an art museum can provide both the museum and the artist with bragging rights. Dr. Crews explains that the artist benefits because he or she receives credit for his or her work. At the same time, the museum benefits because it is able to inform the public that it possesses art of particular value.
Ways in which Museums Overreach and Why It's a Problem
While Dr. Crews highlights legitimate motivations for restrictive museum policies, he
nevertheless suggests that there are four ways in which museums engage in
overreaching: (1) making assertions of false copyrights; (2) claiming copyrights
not held by the museums; (3) applying control beyond rights of copyright; and
(4) attempting to own quasi-moral rights.
Dr. Crews explains that often, artwork under the control of a museum does not
qualify for copyright protection because it falls outside the appropriate
duration, life of the author plus seventy years. Even in instances where
copyright still applies, Dr. Crews suggests that restrictive terms
ought to be scrutinized given the difference between a right asserted under
copyright law versus one asserted because of possession. Indeed, what the
museum touts as a matter of copyright protection might simply be a contractual
obligation. Further, if the museum claims that it has a right because it is in possession
of the artwork, this may not be true.
Conclusion
Dr. Crews discusses the idea that use and enjoyment of art cannot be hindered—that artwork leads to creativity and that new concepts arise from older pieces. Based on this, he suggests that limiting the right to create new art based on interpretations of old art goes beyond the scope of copyright protection. Though, while limited in their rights to ownership and control, museums may still benefit by receiving credit by being identified as the source of the work.
Museums and art houses maintain control over access to a wealth of insight to global history and development. These stores are so large that they can only display a small percentage of artwork at any given time. For instance, in May 2010, the Smithsonian Institute stated that they could display less than two percent of their collection at any given time. Further, that often the reason for third-party access to the museum collection was for scholarly pursuits. In order to meet their objectives, it seems that museums would only gain greater recognition and appreciation from the public, for creating partnerships with photographers or other third-parties, to provide greater access to their stores of artwork, through photographic reproductions.
Drafted by Charu Shori (cnarula@smu.edu), research assistant to Professor Sarah Tran (Southern Methodist University). While Professor Tran is on leave, Professor David Taylor (Southern Methodist University) is supervising her research assistants.
Charu is a third year evening student at the SMU Dedman School of Law. She acquired her BA in Chemistry from the University of Kansas and her MBA in Finance from the SMU Cox School of Business. Currently, Charu works for The Law Offices of Anthony Osei in Arlington, TX.
