Museums can get copyright right

One type of question that I get over and over again from faculty and graduate students involves copyright and images of art works held in museums.  In fact, question is probably the wrong name for these discussions; mostly I try to be sympathetic as the researcher bemoans the thicket of claims and permission costs in which they have become entangled as they undertake some project.  I recently met with one faculty member who is creating an amazing “digital humanities” project and needs to obtain, from a significant number of different museums, high-res images of works that are clearly in the public domain.  Even this author, who is both remarkably good-humored and very persistent, was confused and bemused by the Pandora’s box she had opened.

Then I saw this article about the Rijsmuseum in Amsterdam, which reminded me that even in Pandora’s box, hope remained in the bottom — some museums are bucking the trend and creating reuse-friendly policies for images of public domain works.

Whenever I am asked about the process of getting “copyright permission” from museums to use images of artworks in a new project, I start by explaining three basic principles:

  1. Many of the artworks held by museums around the world are in the public domain, either because they were created before copyright came into existence in the late 17th and early 18th centuries or because any copyright they had has expired.  And even for works that are still protected by copyright, most often the museum that owns the art work does not also hold the copyright.
  2. Even a photograph or digital scan of a public domain artwork that is created by the museum may lack copyright protection under a U.S. District Court decision that said that such “slavish” reproductions — reproductions that add nothing but attempt *just* to accurately reproduce the work — are not original enough to gain any copyright other than whatever protection the underlying work enjoys (which, if the work is public domain, is none).  This is only a District Court case, but it has never been appealed or, to my knowledge, otherwise challenged so it probably should guide us unless or until we get something more definitive.
  3. Museum claims over the use and reuse of images from their collection, even though often called and often understood as copyright claims, are really mostly a matter of contractual agreement and simple control over access to the unique works that the museum holds.  Because these works are (more or less) unique, the ability to make a reproduction can be tightly controlled and the museum can impose contractual conditions on access to make such a reproduction or on the reuse of a museum-supplied image.  These contractual obligations actually bind only the parties that agree to them, but in practice they are often passed to downstream users in the form of conditions on reuse that the original recipient feels bound to impose.

All of this is explained very elegantly and discussed in great detail in a superb article written on the topic by Kenneth Crews of Columbia University, which is available here.  It is a subject all librarians, in my opinion, should understand, so the article deserves a wide readership.  Dr. Crews points out both that many claims made by museums tend to stretch the copyright law beyond reasonable bounds AND that some of the claims for control and remuneration are supported by sound business practices and cultural policy considerations.  This is not a black or white issue, just one where more clarity and an open discussion of genuine needs and concerns can lead to better conditions for the reuse of artworks and images.

Which brings me to the Rijsmuseum.  Their decision to offer high-resolution images of many works in their collection available for free download is a startling example of the other side of this issue — there are good reasons, especially from the perspective of fundamental museum missions to make culture more accessible to the public, to take the opposite approach from that of some museums and support radical reuse.  I was struck by the reasoning behind allowing even commercial reuse of these high-res images:

If they want to have a Vermeer on their toilet paper, I’d rather have a high-quality image of Vermeer on toilet paper than a very bad reproduction.

Maybe the example chosen is not one involving high culture, but it illustrates quite dramatically that reuse of public domain art is inevitable, even for purposes we may deplore, and that the public is, in many cases, better served by access to good-quality reproductions than it is by complex contractual terms and absurd restrictions on even the most traditional practices (like sketching an artwork at the Art Institute of Chicago).  If we must chose between extremes, there is a great deal to recommend the Rijsmuseum approach.

As libraries, museums and archives work to digitize more and more of the public domain materials that they hold, it is worth considering how others will be able to use and reuse those images.  With so many digital humanities projects being pursued around the world, the thickets of permissions and use restrictions will grow evermore burdensome.  An example like the Rijsmuseum is a great counterweight to that burden, and a graphic reminder that it really does not have to be that way.  Of course, not every cultural institution can afford to make high-res reproductions available for free; fees are often essential to support the mission-driven activities of these collections.  So fees may be needed for the provision of high-res images, as may some restrictions on further dissemination of those images. But many of the restrictions and fees we often encounter cannot be justified in this way.  So if we start from the very open policy of the Rijsmuseum and then apply only those restrictions that have sound, policy-based foundations, we can arrive at much more supportive approaches to reuse and new creativity.  The policy adopted by the Cornell University Library’s digital collections is, in my opinion, a model of such a moderate and sensible approach.

For those beginning to explore the uncharted territory of the digital humanities, permission fees and reuse restrictions will probably continue to create nearly unnavigable thickets of complication.  But with these few counter-examples, we can see that a better approach is possible.  Libraries and the digital archives associated with them need to model the best practices that we can in hopes that the most absurd kinds of copyright overreaching will become less common and rational policies based on an accurate assertion of rights and a realistic assessment of needs will begin to dominate.


6 thoughts on “Museums can get copyright right”

  1. It seems to me that constraints on humanities work that much of current museum practice imposes is not unlike the potential patent morrass that the Supreme Court case not allowing patents on human genes avoided. Culture needs to be open in the same way science does and museums and libraries need to choose sides. The Rijsmuseum has set the bar we should hold others and our selves to it.

    Now if only the Happy Birthday case goes the right way.

  2. I am a fan of the Cornell policy. University museums, archives,and libraries could do two simple things in the course of their regular work to make important content available for the scholarly communication ecosystem. 1. Explicitly treat images of works in their collections that in the public domain as, well, public domain. 2. Use Creative Commons licenses as appropriate. Sure there are plenty of things that museums own that are not in the public domain or that might have considerations other than copyright. But these two steps would be a big step forward. Yes, you can still publish with Rizzoli. Yes, you can use Creative Commons and retain rights (as appropriate). Yes, you could even charge for high res images for commercial uses. This would only create more visibility and opportunity. Universities own their collections for the purpose of learning and scholarship – this is just another step in leveraging those collections to fulfill the very reason universities collect in the first place.

  3. Small quibble: the museum’s name is “Rijksmuseum” (State Museum), not “Rijsmuseum” (which would translate to “Rise Museum”).

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