Dear Patrick (& MCN-L), I believe to answer this query one must call upon two or three separate areas of practice and law within the art historical, museum and intellectual property communities.
First, from the point of view of copyright and intellectual property law, certainly the objects discussed no longer have any copyright attached to them (in fact, they never had any). What is copyrighted (or what is claimed to be copyrighted) are the photographic reproductions of such works. In the United States and Britain (at least) copyrightability is the result of a test for "originality." And that term historically has been interpreted and respected rather broadly, so much so that the claim went unchallenged (until recently) that a reproductive photograph of an original work of art held copyrighted content. Ultimately, that means that the repository that holds an object generally provides "copyrighted" images of the object and by that means is able to exert control over the reproduction of objects from its collection that are in the public domain. Of course there are many objects controlled by museums that are not in museum collections but are on loan or "on deposit." Rights to use images of these objects, and even rights to access these objects are not always clear, and when clear, frequently prohibit access altogether. At the same time it must be remembered that having legal ownership and possession of an object allows the repository to make (expensive) high quality, publishable images of it. The monies received from license fees in one way or another are used to protect and care for objects. Monies received from issuing rights to publish very popular works one hopes end up subsidizing the costs of keeping and protecting less popular works. Even so, publication income does not pay the entire costs of warehousing objects. I urge all "commercial" image users to help support institutions -- whenever feasible -- by licensing high quality images for high quality needs. Think of it as an investment in future resources. Museums also have other ways of controlling the use of their holdings. One of these is to require, as a condition of entering the museum, that either no images be taken at all or that those that are taken be used in certain designated limited ways. For example, you might be allowed to use your images to teach a course, but not to publish a scholarly paper. Violation of these requirements are not intellectual property infractions but rather are (may be) contractual violations. (I'm assuming that the original works are not copyrightable.) The dividing line is a thin one, but sometimes, at some point, a repository's obligation to encourage the use of high quality images of objects in their collection manifests itself as a compulsion to limit the use of museum images for the benefit of learning and scholarship. Efforts to open and liberate the image collections within museums -- in court as with the Bridgeman decision -- or in projects that use public domain materials -- as in the upcoming Academic Image Exchange (for which I work) -- or in projects that circulate high quality digital museum images under site license (as does AMICO) are helping to expand the choices teachers, scholars and publishers have available. A third manner of controlling the use of image content comes from the scholarly community itself. If I have read this post accurately, it is in this area that the author finds the most difficulty. It has been the practice and custom (and in some places I'm told, the law) to afford the discoverer of new objects (typically archaeological) a right (or a courtesy) to be the first to publish on it. So while images of such objects may be distributed freely within the scholarly community, most scholars respect this tradition -- a tradition that comes before the public eye every time it is broken in a big way -- as it was a few years ago when the Dead Sea Scrolls were published without authorization. There is a sorry side to this story too: The same kind of restriction can be imposed by force of ownership on any object. I've heard stories of curators who would not allow images of objects they were researching to be distributed among rival scholars. ...or museums that refused to distribute crucial information on its holdings -- like "date." Is this fair? The answer depends upon circumstances. Sometimes a museum is hampered by previous obligations, sometimes by professional ego, sometimes by doubts or shame (legitimate of not) about the accuracy of its own data. As far as I know, there is no museum policy on this practice. I heard a story about a woman (apocryphal, I'm sure) who owned a private library open to art historians for research. (That much is true.) She, herself, was working on a monograph about an eighteenth-century sculptor and removed all the library's books on that artist so that nobody visiting the library could use them. There were complaints. Clearly this was not the "menschlich" thing to do. But they were her books. The question I'll ask (by way of answering the question) is whether museums (specifically public museums) have the same right to withhold their collections from public use as individuals have rights to control or manipulate the exploitation (including scholarly use) of their objects. Or does a cultural institution, by its very nature, by its mandate to serve the public (they are tax-free after all) have an obligation to allow the use of images of its objects in any and all ways that are consistent with their obligation to protect the objects themselves. If a soap company uses the Mona Lisa in an advertisement to sell face cream, does the Louvre have an obligation to protect the reputation of this work? Or does the museum's obligation end with preserving the work and making certain that accurate images of it are available when needed? Do curators who withhold works from public scrutiny ultimately do a disservice their institutions and their public? The short answer to Patrick's question is that there are lots of good reasons why images of museum objects may not be available for scholarship. The long answer is that there are also lots of bad reasons. Robert Baron [email protected] At 07:59 AM 10/13/99 -0400, Patrick Durusau wrote: >Greetings, > >I saw the announcement concerning the MCN conference (October 27-30, >1999: Philadelphia) on the Humanist list. I attended a conference of >scholars working in Ancient Near Eastern studies this past weekend in >Chicago and the general sentiment was that most scholars cannot make >useful images of texts and artifacts freely available due to >restrictions from museums and other repositories. Most of the texts in >question would be held on cuneiform tablets or papyri and could hardly >be considered to be of any commercial value for advertising (as opposed >to photos of a famous person). > >Since your organization obviously supports the use of technology by >museums I may be directing my question to the wrong group but I am >curious what reasons (if anyone knows) curators use to justify to >themselves (if no one else) prohibitions on freely distributing >scholarly quality photos of obviously non-commercial materials. I would >also appreciate any insight list members can give on the question of how >to go about changing policies that restrict such reproductions. > >Patrick > >-- >Patrick Durusau >Information Technology Services >Scholars Press >[email protected] >Manager, ITS > > =========================== Robert A. Baron mailto:[email protected] http://www.pipeline.com/~rabaron/
