[Foundation-l] Article: Public Domain Art in an Age of Easier Mechanical Reproducibility

[Kat Walsh]

The Executive Director for Digital Policy of the J. Paul Getty Trust
has written an article on digitally-reproducible works of public
domain art, and museums' mission, arguing why and how museums should
properly make these works as unrestrictedly available as possible --
thought people here would find it a worthwhile read:

http://www.dlib.org/dlib/november05/hamma/11hamma.html

-Kat



The piece is CC-BY-SA-2.5, so I am including full text here:
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Public Domain Art in an Age of Easier Mechanical Reproducibility
  	

Kenneth Hamma
Exec. Dir. for Digital Policy, J. Paul Getty Trust
<khamma at getty.edu>

    (This Opinion piece presents the opinions of the author. It does
not necessarily reflect the views of D-Lib Magazine, its publisher,
the Corporation for National Research Initiatives, or its sponsor.)



    In principle a work of art has always been reproducible [1].

    In all the arts there is a physical component which can no longer
be considered or treated as it used to be, which cannot remain
unaffected by our modern knowledge and power [2].

Walter Benjamin opened his 1936 essay, Das Kunstwerk im Zeitalter
seiner technischen Reproduzierbarkeit, with the first observation
quoted above. He then extended the notion of reproducibility to
suggest how it might mutate in a world that has changed since the
world in which historical works had been created. Benjamin turned to
Paul Valéry with the second quotation above, which continues a bit
further:

    Just as water, gas, and electricity are brought into our houses
from far off to satisfy our needs in response to a minimal effort, so
we shall be supplied with visual or auditory images, which will appear
and disappear at a simple movement of the hand, hardly more than a
sign.

Neither Benjamin nor Valéry could imagine the uses to which a
copyright act might be put [3].

Nearly every art museum today asserts intellectual property rights in
reproduction images of public domain works in its collection. It is
argued here that placing these visual reproductions in the public
domain and clearly removing all questions about their availability for
use and reuse would likely cause no harm to the finances or reputation
of any collecting institution, and would demonstrably contribute to
the public good. As those images have become increasingly regarded as
assets and as the preferred delivery venue for images has become
increasingly an electronic network, the question of whether to allow
free access and reproduction has become vitally important and complex.
The paradigm for sharing in this context is fundamentally different
from anything we have known before. The manner in which these rights
might be granted, that is, the associated language and processes, may
require consultation with legal counsel. Doing it, however, is not
complicated by legal constraints. The choice to do so is a business
decision that can be evaluated by nonprofits by measuring success
against their mission.

The music industry's struggle to come to terms with the Internet has
over the last years dominated much of our thinking about copyright and
about a communications medium that has fundamentally changed notions
of distribution and use. At the heart of this industry's problems seem
to have been out-of-date business models, wildly divergent values with
a wish that new technology would not be used, and rebellious consumers
and artists. Those same problems are already vexing non-profits with
visual assets. Over time every business – including museums and
libraries – will have to manage for these kinds of changes. And here
the recording industry's turmoil may provide some helpful guidance.
Among other things, it should instruct the non-profit world to keep in
focus its business, described by a mission-based bottom line. We might
well ask ourselves, what is our business/mission that is to be
extended into an online environment: Is it publishing? Research?
Education? Access? Commercial licensing of images?
Discussion

Art museums and many other collecting institutions in this country
hold a trove of public-domain works of art. These are works whose age
precludes continued protection under copyright law. The works are the
result of and evidence for human creativity over thousands of years,
an activity museums celebrate by their very existence. For reasons
that seem too frequently unexamined, many museums erect barriers that
contribute to keeping quality images of public domain works out of the
hands of the general public, of educators, and of the general milieu
of creativity. In restricting access, art museums effectively take a
stand against the creativity they otherwise celebrate. This conflict
arises as a result of the widely accepted practice of asserting rights
in the images that the museums make of the public domain works of art
in their collections.

Indeed, it is not at all clear that the institutional claims of
copyright to such works would survive a legal challenge. The judgment
in a 1999 case, BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., brought in
a U.S. District Court for the Southern District of New York, held that
the marketing of photographic copies of two-dimensional public domain
master artworks, without adding anything original, cannot constitute
copyright infringement when the underlying work is in the public
domain. By and large, museums have been holding their noses and hoping
this ruling will neither be broadly noticed nor challenged [4]. The
fact that the ruling applies only to two-dimensional works of art
likely provides little relief to those museums with a traditional but
persistent pecking order that goes something like: paintings,
drawings, everything else.

When the distribution of reproductions of art works was accomplished
with film-based slides, transparencies, and printed images, the harm
caused by assertion of rights in images of public domain works to the
mission of these publicly supported and tax-benefited institutions was
less restrictive. Obtaining an image generally required moving a
physical object, a film or a paper-based image from one place to
another. Although images, once acquired, could be duplicated, to some
extent the quality of the reproductions was always less than the
quality of the originals. The restriction imposed by the assertion of
rights in images was less visible and less burdensome to the extent
that physical access was an a priori constraint accepted by all
parties. Similarly, violations of use were difficult to find when that
use involved a physical copy. The re-use of images and copies in
university slide libraries, for example, was more likely to be
overlooked by museums. Today, digital images can be copied from a web
site, reproduced, and widely distributed quickly, with ease and little
expense. While examples of museums chasing down digital image
miscreants are rare to non-existent, the expectation that museums
might do so has had a stultifying effect on the development of digital
image libraries for teaching and research.

In the online world, the assertion of rights either prevents the
provision of images entirely or results in providing images that are
marked in some way or are of low quality. Low resolution makes them
useless for most uses. Because the Internet allows and encourages flow
of information unlimited by a gatekeeper, museums choose to restrict
access, not wishing to undermine their financial potential for
commercial licensing.

This resistance to free and unfettered access may well result from a
seemingly well-grounded concern: many museums assume that an important
part of their core business is the acquisition and management of
rights in art works to maximum return on investment. That might be
true in the case of the recording industry, but it should not be true
for nonprofit institutions holding public domain art works; it is not
even their secondary business. Indeed, restricting access seems all
the more inappropriate when measured against a museum's mission – a
responsibility to provide public access. Their charitable, financial,
and tax-exempt status demands such. The assertion of rights in public
domain works of art – images that at their best closely replicate the
values of the original work – differs in almost every way from the
rights managed by the recording industry. Because museums and other
similar collecting institutions are part of the private nonprofit
sector, the obligation to treat assets as held in public trust should
replace the for-profit goal [5]. To do otherwise, undermines the very
nature of what such institutions were created to do.

Some art museums may generate a significant portion of revenues
through commercial licensing of images of works in their collections,
and that revenue may be vital for their continued operations. However,
we have little to no data on the extent to which such revenues really
currently support museum operations. There are no publicly available
figures derived from any survey of net revenue generated by individual
museums as a percentage of operating costs [6]. Neither is there good
information on what percentage of revenues is based on public domain
works or what percentage comes from works still under copyright
constraints. We know even less about the costs associated with the
generation of such revenue, monitoring infringement, and enforcing
grievances – something traditionally ignored in the income analysis of
nonprofits [7]. Answering these questions would provide insight as to
whether there is enough revenue to be worried about.

If the hope for significant commercial licensing revenue diminishes
easy access to quality images for education and research, we might be
tempted to ask, how much income justifies the diminution of the
institution's mission driven goals? As seductive as the finance
question is, the answer lies first in a policy choice for each museum.
Nonetheless, it may also lie in a public policy choice with respect to
the definition of the private nonprofit sector.

Are there other revenue possibilities that have been overlooked
because of the focus on commercial licensing? For example, it is clear
that the public visibility of and familiarity with works of art
generates interest in those works. That interest contributes to the
revenues realized from entrance fees as well as bookstore and
cafeteria sales. This generation of revenue is visible in the
persistent use of images of well-known works in many venues as
advertisements to drive traffic to the museum's front door. Why else
would the paraphernalia that travels under the banner of King Tut
return – yet again? The widespread distribution of images ultimately
increases attendance at the museum.

While the reasons for prohibiting the distribution of quality images
online are frequently founded in an intention, however unrealistic, to
benefit from their potential commercial exploitation, there exists as
well the notion of controlling the proper educational and proper
creative use of those images. This notion derives from something of a
paternalistic stance by museums that has existed for more than a
century, that they alone can properly interpret the works in their
collections. By attempting to hold works of art within an
institutional voice, the single interpretation has often effectively
isolated those works from a more engaged public experience. This topic
is much discussed today in many museums (also now with respect to
audio tours), and while there has been a broad attempt to come to
terms with the notion of single institutional voice, most museums
continue to control all voices but their own by their restriction in
the use of images of their works.

What else motivates the notion of a proper use of images of works of
art? Museums argue that the value of the original work diminishes in
some way with familiarity – the kind of familiarity that might be
brought on by the lack of appropriate explanation and context setting,
by subsequent creative use, and by any creative use that may not be
considered flattering to the collecting institution. But the net
effect of experience with commercial and creative reuses of an image
can best be demonstrated by looking to the Mona Lisa. When viewing the
Mona Lisa at the Louvre, do we laugh at Leonardo da Vinci's famous
painting because others have made a long career of spinning off wall
paper, cookie jars, cigar bands, and so on, that use the reproduced
image of the Mona Lisa? Do we fail to react to the mysterious Mona
Lisa smile in the painting because we've seen her smile so often and
so ubiquitously in other contexts? Museums' collections of public
domain art, along with images of public domain works in libraries and
archives, represent a public trust, a public commons of cultural
heritage. While we currently do not find it odd to be asked to pay for
access to an online library of digital images of public domain works
of art, we would find it untenable to have to pay for such access upon
entering a library to consult public domain materials. And while each
museum must establish its own values, most such institutions would
readily agree that their values fundamentally include concern for the
past and future of ideas and creativity as they relate to the objects
they shepherd. An institutional analysis of income might suggest,
museum by museum, that the take at the front gate far outweighs or
could far outweigh all net licensing revenues.

Would it not, then, be reasonable to put high quality images of public
domain art back into the public domain, unfettered and unrestricted
for all? Would it not be in everyone's better interest to make it easy
to share these resources, such as using the Internet to provide access
to them for public education and benefit? While looked at through the
lens of potential commercial licensing income, this may seem too
trivial an issue to consume leadership time, but looked at through the
lens of a healthy public commons for creativity, there may be no
easier or better service for museum leaders to provide.
Epilogue

This article has argued that making visual reproductions of public
domain art works available for use and reuse without charge would
likely benefit the collecting institutions and would contribute to the
public good. Nevertheless, there are several possible secondary
consequences of acting on this proposal. To a large extent, those
consequences are unpredictable even though they may be anticipated.

Any individual museum that unilaterally withdraws its assertions of
intellectual property rights in images of public domain works, which
seems the most likely starting point for any change in policy, may
earn a reputation of having effectively undermined the assumed future
potential for all fine arts image providers. To most users of images,
one Monet is pretty much like another for a DVD cover that is to be
mainly blue and green. One Boucher may be much like the next for a
Mother's Day greeting card. For these purposes, an unencumbered image
is much more likely to be used – by almost everyone – than one
available for use under license and with restrictions. A large
institution may be accused of using its size and power to undercut
others with some variation of "they could do this because they have
revenues from tickets or their bookstore or endowment." While that
argument would not be a particularly meaningful response to the policy
issue at hand, it might be effective spin.

On the other hand, a potential upside may coincide well with a closely
related issue, namely promoting the management of and respect for
intellectual property rights in works that are not in the public
domain. Permitting an enormous wealth of images of finely crafted
works to circulate freely may act as something of a pressure release –
assuming at least some pent-up public demand for available images.
More importantly, if properly handled, this opportunity to increase
the public domain could focus attention on intellectual property
rights in a very positive way, creating an opportunity for any museum
to explain the value of respecting rights for works still under
copyright. The current time frame for copyright may seem a long time,
but it is an appropriately ephemeral period of control compared to the
unlimited time span implicit in most current museum practice.

Easy and unfettered access seems likely to make a museum's collection
online a more attractive and consequently more used resource. That
attractiveness might be leveraged into revenue by providing
opportunities within a general public view of the collection online to
acquire – for a fee – cards, posters, and other products. It is true
that without the exclusivity guaranteed by intellectual property
control, other market forces may come to bear. But aren't those forces
already familiar and similar to those that affect the popularity of a
museum's collections and exhibitions in a larger world of education
and of leisure time activities?

Obviously these opportunities are available to museums only because of
the Internet, where a mouse click is Valéry's conjecture that "we
shall be supplied with visual or auditory images, which will appear
and disappear at a simple movement of the hand..."
Acknowledgement

This piece has been contributed in memory of the late Stephen Weil,
former Deputy Director, Hirshhorn Museum and Sculpture Garden and
scholar emeritus, Center for Education and Museum Studies, Smithsonian
Institution, who passed away in August 2005.
Notes and References

[1] Walter Benjamin, Das Kunstwerk im Zeitalter seiner technischen
Reproduzierbarkeit.

[2] Paul Valéry, Pièces sur l'art, (Le conquête de l'ubiquité).

[3] "What we have right now is an exponentially expanding intellectual
land grab, a land grab that is not only bad but dumb, about which the
progressive community is largely silent, the center overly sanguine,
and the right wing short-sighted." James Boyle, Shamans, Software and
Spleens: Law and the Construction of the Information Society (1966).

[4] BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191
(S.D.N.Y. 1999)
<http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm> and
<http://www.panix.com/~squigle/rarin/corel2.html> which reveals a very
interesting response from one part of the museum community.

[5] While the revenue streams from image licensing hardly rise to the
bar set by the merchandizing activities of the most ambitious of
museum stores, which has been a point for questioning tax-exempt
status, its impact on access and so on mission is arguably greater and
might be more visible in discussions of nonprofit sector policy as,
e.g., introductory chapter of Marion R. Fremont-Smith, Governing
Nonprofit Organizations, 2004 (pp. 1-18).

[6] The most recent study on this was commissioned by the Mellon
Foundation and delivered by Simon Tanner for King's Digital
Consultancy Services, Reproduction charging models and rights policy
for digital images in American art museums, 2004, which pointed to 56
of 100 museums with budgets over $10 million receiving less than
$50,000 annually from digital rights transactions. This study did not
address the policy issue of this paper – except to ask museums if
unauthorized use of images of public domain works constituted 'fair
use' (p. 31) – but limited its conclusions to managing rights
services, pricing structures and revenue. Previous studies have tended
to focus on the revenue potential of image licensing without regard to
the status of the intellectual property in the underlying work. For
example, The Marketing Works, Like Light Through a Prism: Analyzing
Commercial Markets for Cultural Heritage Content, January 1999, and
Glen Bloom, An Analysis of Economic Models for Administering Museum
Intellectual Property, March 1997, "In addition to serving their
traditional role of making their collections available to the public,
particularly by licensing their images, museums may be able to
capitalize on the value of their collections..."

[7] The Tanner report cited above notes, p. 35, "Everyone interviewed
wants to recoup costs but almost none claimed to actually achieve or
expected to achieve this." And "Even those services that claimed to
recoup full costs generally did not account fully for salary costs or
overhead expenses."

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