# museums and art images **URL:** \ **Category:** Factual Questions\ **Created:** [March 22, 2004, 12:33am UTC](https://boards.straightdope.com/t/museums-and-art-images/235635 "2004-03-22T00:33:37Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![drhess](https://avatars.discourse-cdn.com/v4/letter/d/94ad74/32.png) [@drhess](https://boards.straightdope.com/u/drhess)\ **Post date:** [March 22, 2004, 12:33am UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/1 "2004-03-22T00:33:37Z")
Do images from very old artwork (say a painting) have a period when they fall into public domain? Say for putting on a cuffee mug or calendar without licensing fees. Does it matter if the art is owned by private dealer or museum, or a public museum? I thought I had heard of a case of a museum litigating over people using the likeness of a classical painting it had on the grounds that it was their image and they used it for giftshop related fundraising. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [March 22, 2004, 12:53am UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/2 "2004-03-22T00:53:24Z")
This falls into an odd corner of the law. Art created before 1923, like everything else in the U.S., falls into the public domain and can be used by anyone for any purpose. But a particular image of that art can be copyrighted in its own right. Therefore, if a museum in say, 1989, took down the picture and brought in a professional photographer to take the image under exactly the most perfect lighting conditions and now uses that image on all its promotional items, that image is copyright as of 1989 and you can’t use it. If you can come up with a non-copyright image of that piece of art, you’re free to exploit it. But where you would get such an image, especially in color, is impossible to say. And no, it doesn’t matter who owns the original painting. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [March 22, 2004, 1:02am UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/3 "2004-03-22T01:02:12Z")
In order to reproduce a painting, one must either copy or photograph the painting. The person who executes the painting or photograph (or the person or institution that funded that process) owns the right to the reproduction. Iy should be possible to discover public domain copies of earlier works (although our increasingly retroactive copyright laws are making that more difficult), but for any reproduction that you might want to use, unless you do the copying yourself, _someone_’s work will be the source of your reproduction. As to you going into the Guggenheim or the Prado or the Louvre and making your own private copy, I do not know the exact laws covering those situations, but I suspect that those institutions have the right to permit or deny other copies, based not on copyright, but on simple current ownership. ---
**Author:** ![Dystopos](https://avatars.discourse-cdn.com/v4/letter/d/e79b87/32.png) [@Dystopos](https://boards.straightdope.com/u/Dystopos)\ **Post date:** [March 26, 2004, 11:22pm UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/4 "2004-03-26T23:22:33Z")
Which is an interesting point. Museums set their own policies for copying of works. Many discourage flash photography on the grounds that the flash is somehow destructive – if not to the art itself, to the experience of other patrons. Exact copies (working in oils from life on an identical size-canvas) is usually also discouraged, on the grounds that you might be able to pass off your copy AS an original somewhere down the line. Then you get into media and equipement that are prohibited from the museum, such as spraypaint or drum-scanners. Many museums will allow pencil sketches, but not ink (because you can’t let people run around with ink next to all those irreplaceable masterpieces). The rules are out the window for traveling exhibitions which usually involve paying an extra admission fee and being herded through exhibit-related shopping opportunities with high-margin notecards, posters, CD-roms, catalogs and slides on sale. The contract usually forbids any reproduction of traveling works. But then you go to a place like the British Museum where the art is owned by the citizens of Great Britain (with some controversy stemming from the Colonial era). Here’s their policy: _“Photography with flash and video recording is permitted in most galleries for private purposes only, using hand-held equipment. Applications for commercial and professional facilities must be made to the Filming Officer (Phone 020 7323 8661)”_ ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [April 18, 2004, 2:24pm UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/5 "2004-04-18T14:24:41Z")
Umm…guys, I think you are incorrect as far as the United States goes. A lot of people have this notion that somehow taking snapshots and making scans of PD works automatically creates new works; this is not true in the United States. There is a lot of FUD on this subject, and a lot of false claims of copyright used as “scarecrows” on people’s art websites. A copy of a 2-dimensional public domain work which does not add substantial creative expression to the work is still a public domain work. The guiding case law is _BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36F. Supp. 2d 191 (S.D.N.Y., 1999)_. There have been many good analyses written on the impacts of this ruling which can explain the details better than I, but the ruling is also fairly easy to read. You can also haunt museum discussion lists and groups and find out that many in the field _knew_ this would result, and actively tried to get Bridgeman to settle so that this ruling would not end up as case law and they could presumably continue to threaten people with copyright infringement, hoping most would not take the issue to court and just knuckle under. Too bad for them. If the purpose of the reproduction is to accurately portray as much as possible the original work, then by definition it does not have the creative content necessary to make it a derivative work. Note that 3-dimensional artworks are not covered by this ruling. Of course, as old as this thread is the OP likely won’t even see it, but I have to answer. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [April 18, 2004, 5:26pm UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/6 "2004-04-18T17:26:57Z")
I looked at Bridgeman and while it is an interestingly weird case, the art world must be a very different place for this to be controlling case law. Of course, I’m used to the writing world where the courts don’t just come down on one side or the other of an issue but conjure up so many interpretations as to resemble a scattergram. A mere District Court opinion - one that was decided on the basis of whether UK copyright law might be applied of all things - wouldn’t even be a speed bump much less a stop sign. Then there’s the question of how Bridgeman applies to the OPs question. Even if you grant that it is controlling law you still have the issue of whose picture the OP was planning on using. Museums clearly do have the ability to protect the images they take of their artwork and use for promotion. What you are saying is that if **drhess** were to come in and take a picture - in a museum that allowed photography of its artwork - and use that picture, Bridgeman would be a defense. Maybe. But I sure wouldn’t want to be the one to try it. Museums have far more money for lawyers. ---
**Author:** ![drhess](https://avatars.discourse-cdn.com/v4/letter/d/94ad74/32.png) [@drhess](https://boards.straightdope.com/u/drhess)\ **Post date:** [April 18, 2004, 6:21pm UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/7 "2004-04-18T18:21:41Z")
> [@Una Persson](#): > > Of course, as old as this thread is the OP likely won’t even see it, but I have to answer. Your through going pessism was wrong: I saw it. OPs are notified unless they elect not to of posting in their threads. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [April 18, 2004, 10:14pm UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/8 "2004-04-18T22:14:14Z")
> [@Exapno Mapcase](#): > > I looked at Bridgeman and while it is an interestingly weird case, the art world must be a very different place for this to be controlling case law. No defense using Bridgeman has failed, to my knowledge. Mainly because post Bridgeman, I am unaware of any civil case which has been pursued in a situation where Bridgeman would apply. As I said, I have been hanging out a bit on museum and gallery discussion listservers, and the opinion of the curators I see is that they are uneasy of coming after someone now, fearing a USSC decision against them. > [@](#): > > Of course, I’m used to the writing world where the courts don’t just come down on one side or the other of an issue but conjure up so many interpretations as to resemble a scattergram. A mere District Court opinion - one that was decided on the basis of whether UK copyright law might be applied of all things - wouldn’t even be a speed bump much less a stop sign. With respect, I think you would need to look further. It did _not_ only focus on UK law. From the decision itself: > [@](#): > > [\*192] MEMORANDUM OPINION > > LEWIS A. KAPLAN, District Judge. > On November 13, 1998, this Court granted defendant’s motion for summary judgment dismissing plaintiff’s copyright infringement claim on the alternative grounds that the allegedly infringed works – color transparencies of paintings which themselves are in the public domain – were not original and therefore not permissible subjects of valid copyright and, in any case, were not infringed. n1 It applied United Kingdom law in determining whether plaintiff’s transparencies were copyrightable. n2 **The Court noted, however, that it would have reached the same result under United States law.** n3 (emphasis added) In addition, according to Barry G. Szczesny, American Association of Museums Government Affairs Counsel, > [@](#): > > Just about every museum attorney looking at the case objectively thinks it came out the correct way according to U.S. copyright law that’s why no museum had ever brought such a suit. The U.S. Copyright Office informally agrees. Thus, no one saw any real chance for reversal on appeal. In addition, an affirmation by the Second Circuit, arguably the most influential court on copyright issues, would be even more damaging. According to Mr. Szczesny, the “American Law Institute/American Bar Association (ALI-ABA) “Legal Problems of Museum Administration” conference in Seattle” > [@](#): > > there was a general consensus that the decision was not surprising. This is not to say the implications are not problematic for museums and that people wish Bridgeman had not forged ahead with the lawsuit without carefully consulting the American museum community. It is also not to say that we support the opinion, but if such images are to be protected, some other regime other than copyright, such as “unfair competition” needs pursuit. > > In addition to economic concerns, an additional Bridgeman problem that Steve Weil (Emeritus Senior Scholar at the Smithsonian’s Center for Museum Studies) raised is the potential for a museum to run afoul of the criminal provisions of Section 506 of the Copyright Act for the fraudulent use of a copyright notice. However, it was generally agreed that museums would be safe with notices placed on public domain works prior to Bridgeman, because to run afoul of the criminal provisions you need to have fraudulent intent. I’m no copyright lawyer, but I have experience with copyright law and this is one case I have followed very, very closely. Especially as I’m being cyberstalked by a piece of human filth who’s too stupid to live who among other things has been libeling me as a “thief” because of my online library of public domain works. > [@](#): > > Then there’s the question of how Bridgeman applies to the OPs question. Even if you grant that it is controlling law you still have the issue of whose picture the OP was planning on using. My post specifically referred to PD works, which is what Bridgeman addressed. I posted about it because the OP specifically said: > [@](#): > > I thought I had heard of a case of a museum litigating over people using the likeness of a classical painting it had on the grounds that it was their image and they used it for giftshop related fundraising. By “classical” I assumed “pre-1923 or PD”. If I was incorrect, forgveness please. > [@](#): > > Museums clearly do have the ability to protect the images they take of their artwork and use for promotion. What you are saying is that if **drhess** were to come in and take a picture - in a museum that allowed photography of its artwork - and use that picture, Bridgeman would be a defense. What ability do they have? Really? If they are trying to sell something that is intended to be a true and accurate reproduction of a PD work, and they feel that their reproduction which is devoid of the creative addition or expressive content that copyright normally requires, why do they have a right? From where does this arise? What creative content did they add? How does what they do embody any spirit or the letter of what copyright intends? The “ability” that they have is to offer the best possible reproductions and sell those reproductions. They have no ability to exert a new copyright on a PD work by adding no creative content or substantive effort to the work. > [@](#): > > But I sure wouldn’t want to be the one to try it. Museums have far more money for lawyers. Well, as we see today on CNN some dingus is trying to sue Coors for what amounts to “crimes against America’s youth” over producing beer. Obviously and most sadly, people can sue anyone over just about anything. On this topic, Bridgeman may turn out to be the last time such a case ever makes it into court - because IMHO no museum in their right mind is going to browbeat someone over use of clearly and unambiguously PD images in their collection. And if they do, IMHO, they will lose. ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [April 18, 2004, 10:17pm UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/9 "2004-04-18T22:17:46Z")
> [@drhess](#): > > Your through going pessism was wrong: I saw it. OPs are notified unless they elect not to of posting in their threads. Once again, forgiveness. I am used to coming in too late to threads and adding something no one cares about any more. I didn’t know many people used e-mail notification. It would fill my Inbox pretty quickly if I did… ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [April 19, 2004, 12:36am UTC](https://boards.straightdope.com/t/museums-and-art-images/235635/10 "2004-04-19T00:36:49Z")
Fascinating stuff. I’ll mark this down for future reference. Thanks for the exposition.