To Shoot or Not to Shoot? Copyright Issues Pertaining to Photography Inside Museum Spaces

Source: (2019). Clothing licenses and Museums. [Photograph]. T2T Connecting needs. https://www.t2tsolutions.com/clothing-licenses-museums/

Copyright law comprises the main weapon for an author to protect his right to exploit his work financially, as the law recognizes a deep moral connection between authors and their creations. The relationship between museum collections and copyright may sometimes be complex, demanding high levels of knowledge and understanding. The employees in those spaces interact in many ways with copyrights. Either because the works of their collections are “loan products” for a temporary exhibition or even if they are part of their main collection, there is mooted the matter if the works are still under copyright protection. The reproduction acts a museum usually follows for the promotion of a new exhibition, the creation of derivative works for commercial purposes and, the new loose photography policies, in a period of a health crisis where the web content gains more space day by day brings to the spotlight new matters regarding copyright protection. It is important to spot who is the copyright holder in every case and act accordingly.

Cultural heritage organizations in general and especially museums have the duty to act like an inter-cultural bridge: creating strong and deep relationships between their collections and the audience. According to ICOM’s definition of what a museum is, for education, study, and enjoyment a museum has to collect, preserve, conduct research and exhibit the tangible and intangible heritage of humanity and its environment. In contrast, there are no legislative definitions in most national laws, either of the artwork or of the private collections or museums. In many cases, this condition creates uncertainty and has consequences in the proper documentation that has to rule art transactions in general.

Museums’ collections are widely varied; they are distinguished for their unique and special goods, which are part of human history. Those cultural goods have an essence, presenting artistic, archaeological, historic, natural, or ethno-anthropological interest, which demands that all people should and must have access to them. The question if all the exhibits in a museum are copyright protected is a reasonable one, which can be answered by taking into consideration two important factors. First of all, in order for a work to be protected, it has to be the author’s original intellectual creation, expressed in some form. Originality is an essential criterion for protection; it refers to the individuality of a work that has to be statistically unique or reflect the author’s personality. The problem with the originality is that it has different meanings in different copyright systems. The second factor has to do with the duration of copyright. The general rule of the protection of the exclusive rights of the creator in Europe is all the author’s life and 70 years after his/hers death and 50 years in the USA. After the protection expires the work comes to the public domain. Consequently, the answer to the question is not universal, and we have to consider the tenor of the museum (archaeological, art-museum, ethnological, natural history, etc.) and examine its work separately.

Source: (2016). Why is taking photographs banned in many museums and historic places?

[Photograph]. The Conversation. https://theconversation.com/why-is-taking-photographs-banned-in-many-museums-and-historic-places-66356

The differences between the legal systems cause some issues regarding copyright protection. According to the US law about copyright protection, prior to 1976, copyright of works are automatically transferred with the ownership of the work, but since 1976 copyright stays with the creator if not explicitly transferred in writing to the new owner: a resolution that has been applied in Europe for a long time. As a result, most of the works in museums’ collections either belong to the public domain, or the copyright belongs to someone else; for the copyright law the physical ownership of a work means nothing. This fact is important if we consider the policies about photography inside the museum spaces; as an attempt to control the reproduction of their work, which belongs to the public domain, museums try to control the photographs.

For a long time, museums have been concerned about the reproductions of their images, like the quality and the alteration of the images as well as the exploitation of them in unauthorized ways. Technological development and the use of the web content have increased the above-mentioned concerns for the simple reason that digital images can make possible the reproduction of the original works in many ways more easily, and also allow the “immature” photographers to make a profit from them. At this point, a little disclaimer that the copyright law was developed, at first, in order to protect the prints and the “physical” works would be useful because the adaptation to the other media is not always that well. This condition has created a debate over the copyright on other media and how museums should react.

Back in May of 2013, the fully renovated Rijksmuseum opened its doors again to the public after ten years. The peculiarity at this point was that the museum allowed photography for the first time in their collection. As the director of the museum collection, Taco Dibbits said it was their duty, as a national museum, to give the public access to their collection; the institution offers an overview of Dutch art and history, consisting everyone’s cultural property. It was an attempt to make a balance of the copyright restrictions by loosening their "no photography" policies. In most museums, these photography restrictions protect the museum from any copyright liability. Because of the distinction between the “physical” owner of a work and the copyright owner, it is common for a museum to not have the right to reproduce or publish the image of a work without the copyright owner's permission. On the other hand, even if a museum holds the copyright of a work, it could still be against loosening the photography policies, because in that case, the museum has the monopoly in its use and, from each controlled reproduction of it, could have commercial gain. “An open-source” may actually drive to copyright infringements, which in many cases may cost high financial damages to the museum but also opens the way for a more direct interaction of the audience with the museum collections. One of the purposes a museum should fulfill, according to ICOM’s definition in order to accomplish its mission, has to do with the enjoyment of the audience. By giving people the freedom to take photos of the works, museums give them a stimulus to develop their creativity. If someone considers the fundamental role which social media plays in our lives, this freedom can also work as a free advertisement for the museums through the audience posts.

Source: (2018). The Art of Museum Selfies: Disrupting Spectatorship with Performance. [Photograph]. National Communication Association. https://www.natcom.org/communication-currents/art-museum-selfies-disrupting-spectatorship-performance

Despite the economic issues that arise, there are some moral problems involved: the quality control of the images and the rights of integrity and paternity. To begin with, quality control is a high commitment for any museum in order to guarantee that any reproduction would be of high quality since it is known that the color authentications, as well as the resolution of an image, are highly debatable topics. The problem of integrity is an important issue if someone considers the easy digital manipulation which can undermine the integrity of a work. For that reason, museums should find a way and prevent users from messing with the web content. Closing, paternity is a very touchy issue for a museum. In order to be recognized as the authorship of an original work, it is crucial to be given the right credits, and the image must be identified in a proper way. With digital manipulation, every reproduction becomes easier, and every image can be reproduced an infinite number of times, so it becomes easier for a work to lose its identity.

Museum traditionally plays the role of the information providers, presenting their collection to the visitors who come to their spaces in order to learn and gather information about the collections. For a museum, it is a commitment as a duty to spread knowledge and make the collections available to the public, in total respect to the copyright policies. Considering the increasing interest in museum collections, in parallel with the technology development and the new ways of reproduction, museums have to look for new ways to deal with the accessibility issues and try to reconsider their restrictive policies. The reproduction of their collections is not only a legal issue but a matter of museum ethics; Ethics have to be modernized with the digital age.

References:

Articles:

Petri, G. (2014)” The Public Domain vs. the Museum: The Limits of Copyright and

Reproductions of Two-dimensional Works of Art”, Journal of Conservation and Museum Studies, 28 August, pp. 1-12

Books:

Association of Art Museum Directors (2017). Guidelines for the use of copyrighted materials and works of art by art museums.

Moustaira, E. (2015). Art Collections, private and public: A comparative Legal Study: Springer.

Zorloni, A. (2016). Art Wealth Management Managing Private Art Collections: Springer.

Conferences:

Schweibenz, W. (2000) “Art Online: Access ant Copyright Issues for Digitized Museum Information”, in 8th International BOBCATSSS Symposium. Krakov, Poland, 24-26 January, 2000

Online Articles:

Benhamou, Y. (2016) “Copyright and Museums in the Digital Age”, WIPO magazine [online], June Available from: https://www.wipo.int/wipo_magazine/en/2016/03/article_0005.html (Accessed 7 April 2021)

Korn, N. (2017) “Copyright for museums and galleries” [online] Available from: https://www.copyrightuser.org/educate/intermediaries/museums-and-galleries/ (Accessed 7 April 2021)

Siegal, N. (2013) “ Masterworks for one and all”, The New York Times [online], 28 May Available from: https://www.nytimes.com/2013/05/29/arts/design/museums-mull-public-use-of-online-art-images.html?from=technology (Accessed 7 April 2021)

Vezina, B. (2020) “Copyright Law must Enable Museums to Fulfill their Mission” [online], 18 May Available from: https://creativecommons.org/2020/05/18/copyright-law-must-enable-museums-to-fulfill-their-mission/ (Accessed 7 April 2021)

Other references:

International Council of Museums (ICOM), (2017). Statutes, 9 June, Paris, France