For those of you who followed the thread on photographing buildings in
previous posts, here is an interesting enlargement of the discussion as it
relates to photographs of works of art.  How do reproductions of published
historic photos of buildings relate to this issue?

MDKrugman
__________________________________
Subj:         Re: copyright laws
Date:   3/9/98 10:51:20 PM EST
From:   [log in to unmask] (Robert A. Baron)
Sender: [log in to unmask] (CONSORTIUM OF ART AND ARCHITECTURAL HISTORIANS)


At 01:34 PM 3/9/98 -0500, Gerald Stiebel wrote, quoting Caroline Igra:
>> Could someone please clarify for me the copyright laws concerning using
>> photographs of art works in art historical publications?
>
>My understanding is that if you are talking about a work of art which is
>not copyrighted i.e. a painting done in this century, the copyright
>rests with the photographer or owner of the photograph, but still it is
>a good idea to ask the owner of the work of art.
>
>That is why museums are very careful about allowing photography
>especially in loan exhibitions.

The answer to questions regarding how to respect or ignore copyright when
publishing images is not an easy one, and is made more complex by the way
the law in the United States does not acknowledge the peculiar nature of
images and their copies. The paper Peter Walsh just delivered at the CAA
Town Meeting (Session I) in Toronto, highlights the nature of the
confusion. He shows that the copyright law is obscure when it comes to
defining what a "copy" of an image means, while it is clear when the "copy"
is text. (Peter's paper is going to be posted at
http://www.pipeline.com/~rabaron/ttm/TTM.htm in a few days.) (Readers
should note that the answer to the question at the head of this report
contains a flaw that makes it wrong.)

Similarly, the law is vague and unclear when it defines how the event of
"publication" is to be applied to a work of art. A book or a manuscript
(the written kind) can be published. The date of publication is a factor
needed to determine when such items enter the public domain.  But what does
publication mean when the manuscript is "illuminated," or how do you
"publish" any unique work of art.  You can only publish a copy of a work of
art, but each such copy is itself a distinct copyrightable entity different
from its underlying image.

So when the above questioner wishes clarification regarding the publication
of a photograph of a work of art to be used in an art historical
publication, one must determine the status of two factors before doing
anything else: 1) What is the copyright status of the original work, and 2)
What is the copyright status of the photographic copy?

If the underlying work is still under copyright (in the US, not more than
50 years beyond the death of the artist), then the photograph of it is a
derivative work, and the scholar who wants to publish the picture must make
sure that the photographer has the rights to sell the photo for publication
or must clear the underlying rights to the image all the way down to the
original work.

However, if the underlying work is in the public domain (or in the case of
architecture is in public view), then the copyright lies solely with the
photographer (in the US), unless, of course, the photograph, itself, is in
the public domain.  In this latter case, the scholar is free to publish the
photograph without permission as long as the holder of the photograph (an
archive, for instance) is not constrained by contractual limitations that
supersede copyright law.

The reproductive photograph (in the US) is treated like a unique work of
art. Thus, if the photograph is still less than 50 years younger than the
date of death of the photographer, tradition in the US assumes the photo is
the copyrighted property of the photographer or is heirs.  (It differs in
some European countries which distinguish original photographic art from
commercial and reproductive art.) There are a bunch of wrinkles in the
factual analysis of public domain that apply to works made before 1976 that
were not identified as the copyrighted property of someone. (I'm
simplifying here.)

Obviously, none of this is easy. Copyright advice is as much based on
argument as on statute. In the face of the lack of case law, few
interpretations can be guaranteed to be valid.

All this is made more complex by the fact that art historical tradition
sometimes flies in the face of copyright law, so that what may have been
allowed or condoned in the past, may not be allowed now. For example,
before the copyright of works were understood to remain with the creator,
to publish a modern work one just needed the permission of the owner. The
owner would rarely refuse permission, but might insist that he not be cited
and that the work not be identified as in a particular collection. Perhaps
I am wrong, but owners in the past felt it was an obligation of ownership
to permit their works to be studied.  This tradition was begun in the
princely collections, continued as they were transformed into public
collections, and was adopted by the princely-collector wannabes. What had
been viewed as an owner's obligation was easily transformed into a
scholar's right. The world is no longer the scholar's oyster; the scholar
is a scavenger just like everyone else.

But the old ways die hard, especially when adhering to them bestows a sense
of status and superiority. So the courtesy due owners may be taken as a bow
to humanitas and personal obligation in an age that otherwise has little
respect for tradition--copyright or no. So, even though certain objects in
the public domain may be outside, free to photograph, with not a hint of
restriction around, it still is considered proper etiquette to request
permission to publish the work--even if you are the photographer. Museums,
galleries, public collections have devised policies, however, to formalize
the request process and to make its restrictions unavoidable. I needn't
mention these strategies; everyone knows what they are.

In the US (to add to the fun) there are actually two seemingly
contradictory laws that may be applied to using copyrighted materials.
There is the law of copyright, and then there is the law of fair use.
Copyright law is for those people who believe their use of works falls
within the sphere of copyright obligations, i.e. those who are not
permitted to take a chance avoiding copyright, who prefer the safe road
themselves, or who cannot wriggle out in some other way. Fair use, on the
other hand is for those who believe they are exempt from copyright and who
are in compliance (according to their own estimation) with the four fair
use factors defined in Section 107 of the copyright code.  I'm being a bit
facetious, here, but what I want to point out is that to solve the question
at hand involves no small degree of soul-searching and analysis. How close
do your purposes comply to the requirement of fair use, what effect will
your use have on the viability of the copyrighted item, etc.

No easy answers are to be had here as long as each effort to enforce
copyright law is to be opposed by arguments aimed at undoing the stated or
assumed protections provided by the law.

We live in interesting times. At this very moment, at stake is the right to
claim fair use when accessing digital media. (See David Green's article on
the current legislative situation--soon to be placed at the following URL:
http://www.pipeline.com/~rabaron/ttm/GREEN.htm) Similarly there is work
underfoot to make those "click-through" licenses you see on software
(shrink-wrap licenses) legal and binding and to make them powerful enough
to supersede copyright law. The end result of this run will be to end the
sale of intellectual property as a commodity--such properties will all be
licensed and there will be no negotiation of such contracts for small
users. (My first encounter with licensed intellectual property was with a
large database of newspaper articles and other information resources. After
spending 10 or 15 dollars to find and download a newspaper article I
needed, the license agreement printed at the end, gave me one week (perhaps
it was two weeks) to use the article. After that, I had to destroy it!)

=>Obviously much has to be done. Mrs. Lavin has already announced that the
CAA Committee on Intellectual Property will undertake the production of a
guidebook of image copyright questions and answers.  Obviously, such a
guide will not be able to lend moral support to those who wish to take
copyright chances.  But it will be a useful guide for the perplexed.  (I'll
soon post an official notice soliciting questions for this guide.) How does
one answer the question about publishing works for which no copyright owner
can be found or whose owners refuse to respond. Mrs. Lavin's response seems
more than generous. (Three strikes and you are out.) But, as far as I know,
there is no guideline or law that validates this figure--it is
tradition--perhaps. But those three unsuccessful attempts will not absolve
a scholar from jeopardy.

=>Obviously, though art historians rarely consider it important (Is it
beneath them?), lobbying for friendly legislation is not a useless tactic.
In our society scholarly voices are often small voices.  Scholars thrive on
distinctions; unity is difficult to achieve. A directed articulate appeal
to the makers of legislation, focussed so to imply that friendly copyright
legislation is for the good of the society and country, may very well help.
Does it sound oxymoronic: "Scholars Unite!"

=>There are other legal strategies that may be worth a shot: Take a look at
Gary Schwartz' Toronto Town Meeting paper for several inventive
suggestions. The URL is as follows:
http://www.pipeline.com/~rabaron/ttm/SCHWARTZ.htm

=>Finally, what this discipline really needs is a database of public domain
images, images that can be purchased in a variety of resolutions to suit a
variety of needs and pocketbooks, but images, once owned, must be
publishable or usable without fee. Such a database cannot obviously be
composed of images taken from recent 8x10 color transparencies. It will
have to be made up of old photos from personal collections and archives,
from recent images donated to the public domain by the altruistic scholars
and tourists who own them, and from books of fine illustrations that are
old enough to be in the public domain and good enough to provide
publishable images. I am happy to report that preliminary efforts are now
being made to create such a system for scholarly and related uses. Stay
tuned for further details.

Robert A. Baron
mailto:[log in to unmask]

P.S. I don't know an answer to Caroline's question. There are many
answers--too many in fact.