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Museums Increasingly Face Copyright Issues

Rijksmuseum makes waves by allowing photography in all its
galleries and high resolution images on their website.

When the Rijksmuseum opened its doors last month the public was allowed to photograph any work in their collection for the first time.  Camera flashes mark a change in museum policy forever.  The Rijksmuseum’s website now features a database of 125,000 high resolution images of masterworks by artists such as Mondrian, Rembrandt, van Gogh, and Vermeer.  They plan to add another 40,000 images by next year.

Taco Dibbits, the Rijksmuseum’s Director of Collections, stated: “We’re a public institution, and so the art and objects we have are, in a way, everyone’s property.”The Rijksmuseum model is causing museums to rethink their current policies about photography.  It is quickly becoming a conundrum, especially after The New York Times published a story titled “Masterworks for One and All” and ARTinfo brought the issue to light with a commentary “Camera Ready: In an Attempt to Balance Copyright Restrictions and Ever present Camera Phones, Some Museums are Loosening their ‘No Photography’ Policies.”

Susan M. Bielstein’s
Permissions: A Survival Guide.

In most museums their restrictions on photograph protect them from copyright liabilities.  They use only thumbnail size, low resolution images on their websites.  High resolution images are available only by special request with limited rights for publication.Images the size of a “thumb nail” are considered fair use.  In the 2002 case of Kelly v. Arriba Soft Corporation, the court ruled that the use of a “thumb nail” images on the website Arriba Soft was not a violation of copyright.  They decided that small images of low resolution did not substitute for the original work and did not limit Kelly’s ability to market his work. This case is used as precedent for the fair use of copyrighted images.  In Permissions: A Survival Guide, author Susan M. Beilstein writes: “Thumbnails are a combustible topic right now, meaning they have been the subject of recent litigation.  So be forwarded.”

Why?  Most museums do not own the copyright to their “physical” paintings.  The 1942 case Pushman v. New York Graphic Society defined ownership of artwork as distinct from the copyright to use the image of the artwork.  This was clarified in Congress in the 1976 Copyright Act, Section 202, clarifying that the sale of a “material objects” is a transaction separate from the sale of copyright. 

The owners of artwork copyrights have a different agenda than the “physical” owners of the artwork.  This can create many problems for museums, who in some cases must gain permission from the copyright owner to publish an image from their own collection.  An interesting example, explained in Beilstein, is Les demoisells d’Avignon.  The painting is owned by two parties.  The “physical” painting belongs to the Museum of Modern Art; the copyright belongs to the heirs of Picasso, now called the Picasso Administration.  MoMA must obtain permission explicitly from the Picasso Administration to use the image– hence why very few coffee mugs and tote bags bare the image of Picasso’s demoisells.

Picasso, Les demoiselles d’Avignon, 1907.  Note: This image is larger than my thumb,
but could be conceivably be the size of someone’s thumb and is not from the MoMA website.

Allowing photography is beneficial for museums because:

(1) It opens new doors for academia and interaction with museum communities.  Some argue that museum policies should not be restricted and allow a “open source culture.”  Researchers could use images freely and the general public would enjoy the freedom to post images of themselves in front of paintings and enjoy manipulating them, inviting public engagement and artistic freedom.

(2) Policing the use of images in the age of the internet requires vigilant employees and funding that could be allotted to other museum programs.  Nina Simon, author of The Participatory Museum, stated: “You [museums] are fighting an uphill battle if you restrict.  Even if the most locked-down spaces, people will still take pictures and you’ll still find a million of these images online.  So why not support it in an open way that’s constructive and embraces the public.”

(3) Digitizing images is a financial burden– the machinery, software, and specially trained employees (or interns) drain money from museum coffers.  The Rijksmuseum had an advantage in that the their project was funded by $1.29 million grant from the national lottery and had 10 years to digitize the images while the museum was closed for construction.

(4) It is practical: it allows gallery guards to protect and secure objects rather than enforcing photography policies, which requires most of their time.  The Brooklyn Museum is only one of the museums at the forefront, opening the use of some images in their collection. According to Senior Brand Manager Alisa Martin: “Guards are spending so much time focusing on someone holding a devise that they might not see the person next to them.  As the devices get smaller, it gets harder to manage.  We have to ask ourselves, are we using guards appropriately.”

Restricting photography is beneficial because:

(1) If a museum holds the copyright their artwork, they have a monopoly on its use.  They can charge academics and researchers for limited use to publish, and more importantly, use the images for commercial gain.  Gift shop revenue is a lucrative business and a consistent stream of cash.

There is no credit for this image-
I found it by doing a google image search

(2) Allowing photography in all the museum opens the door for copyright infringement litigation, which could lead to thousand of millions dollars in damages.  Bielstein labels this a “the legal gap.”

Charlotte Sexton of the National Gallery in London sums up the issue: “Everyone understands that open access is the way to go. However, organizations are in different places, and are facing a conflicting set of challenges.  On the one hand, museums are still making money from the sales of images.  That income, though, has been decreasing.  That commercial concern is butting up against this desire to go for free access.”

As it stands, while the Rijksmuseum experiments with the idea of “open source” photography,  museums are forced to address the issue and find a resolution.

Sources: “Masterworks for One and All,” The New York Times, May 28, 2013; “Camera Ready?” ARTnews, May 2013; Permissions: A Survival Guide, Susan M. Bielstein, 2006.