Wednesday, November 2, 2016

Should Museums Own Copyright on Photographs of Their Paintings?

Museums own paintings, but apparently, they don't own the copyright over photographing those paintings or making derivative works like posters of paintings. At least, that's the argument strongly made by Alain Marciano and Nathalie Moureau in their essay, "Museums, Property Rights, and Photographs of Works of Art: Why Reproduction Through Photograph should be Free," which appears in the most recent issue of the Review of Economic Research on Copyright Issues (2016, 13:1, pp. 1-28). Here's an overview of their argument (footnotes and citations omitted):
"[T]he law is generally unambiguous: the physical artwork must be distinguished from the image of this artwork, which means that owning the artwork does not imply owning the reproduction of the image of the artwork. ... The property right on a work of art must be distinguished from the intellectual property right. The property right bears on the object itself but is dominated — most of the time — by the intellectual property right when conflicts take place. Indeed, having a property right on the work of art itself does not mean having intellectual property right over the artwork. ...
"Actually, the intellectual property stays with the artist whilst he or she is alive and moves to his or her heirs for the next 70 years after the artist’s death. From the moment the work of art has been produced right up to 70 years after the death of the artist, the intellectual property right and the right of copy and reproduction belong to the artist or his or her heirs and not to the owner of the work. Indeed, the latter does not have the right to reproduce, sell or, even simply distribute copies, unless the artist him- or herself decides to transfer the copyright to the owner through a contract. After the 70-year period, the work of art falls into the public domain, which means, as it is well known, that its reproduction is free and that every individual has or should have the right to photograph, reproduce, copy and distribute the copies of the work of art. Furthermore, because first-generation copies of works of art are not considered as works of art, they cannot, therefore, be protected by a copyright. Thus, as the owner of a work of art, museums fall into one of the two categories: either they own a painting protected by an intellectual property right or the painting is in the public domain, and in both cases, museums do not have the right to prevent individuals from photographing the work. These are the only possibilities. 
"However, museums do not always follow these requirements ... Indeed, and this started to occur in the 1990s, museums are now not only almost systematically preventing visitors from taking pictures and using them, but also request very high fees for taking professional pictures. They systematically oblige photographers who want to take a picture to fill out forms and to follow long and complicated procedures before granting the authorisation to photograph the works of art that are in their collections. This means that museums transpose their property right into an intellectual property right and a right of reproduction that they do not own and cannot have. ... In addition, museums also place a copyright on the first generation copies of the works of art they own. More broadly, museums also market derivative products under a copyright label, even if these products involve old master reproductions whose legal protection ended many years previously. As mentioned above, this is also illegal — a copy made of an image cannot be restricted in any way by the owner of the artwork."
This issue has grown in prominence because many cash-strapped museums are relying on sales of derivative products as part of their annual revenue flow. Indeed, this isn't currently the law, but one could make an argument that museums should have copyright over images of their artwork, even artwork that is in the public domain, because it's a way that society can help art-lovers to subsidize museums. Marciano and Moreau argue that such a policy of giving museums the copyright over images of their art (unless this explicitly negotiated with the artist) would not be appropriate, for several reasons.

They argue that the net revenue to museums from sales of reproductions, after the costs of making and selling the copies is taken into account, is not very large. They point out that there is a trade-off for the broader mission of museums: many museums are limiting the availability of images from paintings in the name of promoting a public appreciation of art. One might want to ban flash photography, although the authors argue that the dangers of flash photography for art are often highly overstated, but such a rule would be quite different from banning all photography. Sure, some lousy photographs might get made, and even sold, but copyright law does not exist to assure quality copying. Indeed, one can argue that if the market for making photographs of paintings was more competitive, then museums would have improved incentives to take advantage of their proximity to the art to take especially high-quality photographs.

Nothing in this argument would limit artists from continuing to own the intellectual property related to their artwork, whether it is held in a museum or not, as the artists do under current law.