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Copyright Ownership in Works of Art and Images

Module by: Hilary Ballon, Mariet Westermann. E-mail the authors

It has always been possible to copy a work of art. For millennia, the right to produce and use images of the works of others for religious, political, commercial, or decorative purposes was rarely challenged. The advent of copyright restrictions on images coincides with the invention of the technologies that made faster, more economical reproduction of them possible—the printing press and efficient papermaking—and with the early capitalist transformation of European cities that spurred those technologies. As soon as multiple printmaking techniques were cost-effective, artists began to challenge unauthorized print copies of their inventions on commercial grounds, and thus generate case law that would lead to the codification of copyright in works of art and images. Causes célèbres in the history of the copyrighted work of art include Albrecht Dürer's partly successful challenge to Marcantonio Raimondi's bootlegging of his prints, Claude Lorrain's effort to protect his compositions against forgery by recording them in drawings in a Liber Veritatis, Peter Paul Rubens's elaborate privilege applications, and William Hogarth's lobbying for the first English Copyright Act, passed by Parliament in 1735.1 The current difficulties faced by scholars and their publishers in obtaining—and paying for—copyright permissions stand in this tradition of artists' assertions over the potential commercial value of their creative endeavors.

The following discussion of the current state of copyright practice is limited to copyright in works of visual art and architecture and in images that reproduce them.2 In the United States, copyright law protects makers of artistic works against the unauthorized copying, that is, reproduction, of their works. It is a form of intellectual property law in that copyright protects the expression of an idea (visual or otherwise) rather than the idea per se, and in that it is meant to safeguard the actual and potential commercial value of an artistic work for its creator, for a legally specified period. Ever since the adoption of the 1976 U.S. Copyright Act, which took effect in 1978, the law has tended to strengthen copyright protection for the makers of works of art and images and for their heirs, at the increasing expense of the right of freedom of expression, which would seem to authorize critical and expressive re-use and interpretation of creative works. Under the 1976 Copyright Act, copyright extends from the moment of the work's creation through the author's lifetime plus fifty years. In 1998, the Sonny Bono Copyright Term Extension Act increased that term by twenty years.3 The Digital Millennium Copyright Act, also passed in 1998, offers further protections of copyright holders in the digital realm.4

The 1976 and 1998 copyright acts yield a few rules of thumb: any work of art made after 1978 is in copyright for the life of the author plus seventy years; any work of art that was made before 1978 and never published is copyrighted for the life of the author plus seventy years; any work of art that was published before 1923 is in the public domain; and many works published between 1923 and 1978 remain in copyright today.5 When the copyright owners of works are hard or impossible to identify and locate, as is the case for the vast majority of works published before 1978, they are referred to as "orphan works." The convolution of these rules and terms, here presented in simplified form, is the result of the continuing force of the central provisions of the Copyright Act of 1909, which was not fully superseded by the later acts; the 1909 law defined copyright in a creative work from the moment of its properly registered publication rather than creation.6

The complexity of U.S. copyright law, and its partial incommensurability with copyright law in other countries, is especially onerous for scholars who publish images of twentieth- and twenty-first-century art. Nevertheless, a gradually expanding definition in practice (rather than by law) of the "artistic work" that is protected by copyright has created analogous difficulties for scholars who study works of art that have long been in the public domain. Authorized photographers of those works, or the owners for whom they make them, usually claim copyright in those reproductions, with the same temporal extensions granted artists and their heirs.

Thus, most museums now explicitly or implicitly claim copyright over images of all works in their collection, whether in the public domain or not. The same copyright ownership is implied by for-profit collections of images of public domain works, in digital as well as traditional photographic forms. Such collections include stock image providers geared exclusively to commercial applications (such as Corbis, a company founded in 1989 by Bill Gates, which describes itself as a "visual solutions provider" of all manner of images, not limited to works of art) and image collections focused on reproductions of works of art for commercial as well as scholarly applications (such as the Bridgeman Art Library and Art Resource, which present themselves as "archives" or "libraries" of art images, many of which are licensed to these providers by major museums as well as private collectors). For museums and other owners of art in the public domain, granting non-exclusive licenses to for-profit art image providers extends the commercial value of works of art in their collections.

Our study found that the efforts of owners of works of art in the public domain to claim copyright over plainly reproductive images of them is meeting with growing criticism and with legal and practical attempts at remediation. Such critiques usually argue for a distinction between "artistic" or obviously "interpretative" images of works of art and architecture on the one hand, and, on the other, "slavish copies" or "exact records" of such works.

At first sight, this distinction appears problematic on philosophical as well as pragmatic grounds.7 It seems easier to make for works of architecture, sculpture, performance art, and installations than for paintings, drawings, and prints, because viewing angles, lighting, and the presence of figures matter that much more in images of spatially and temporally extensive works.8 Yet as superior photographers of "flat" works will claim, translating an oil painting—especially one with fine-grained brushwork or heavy impasto, subtle colorism or complex perspective—into an image that will evoke its aesthetic effects in print or on screen is a creative endeavor in its own right, whose commercial value should be protected by copyright. Many contemporary artists would use different arguments to challenge the claim that imaginative yet nearly exact reproductions of flat images cannot be copyrighted. Various forms of appropriation of "flat" images, some of which may appear "exact," "slavish," and "unoriginal," have been central to art production for several decades now, and their philosophical status has been the subject of sophisticated art criticism.9 The argument that reproductive images of "flat" works lack the modicum of creativity required for copyright production may be appealing to scholars of paintings, drawings, prints, and photographs in the public domain, but it seems difficult to make and harder to adjudicate.

Nevertheless, it was precisely on distinctions between creative and slavish reproductions that the U.S. District Court judge in the 1998 case Bridgeman Art Library v. Corel Corporation rejected the plaintiff's claim that Corel had infringed its copyright in color images of paintings in the public domain. Corel had digitized several transparencies made and owned by Bridgeman of the works in question. The judge ruled: "There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. . .. But 'slavish copying,' although doubtless requiring technical skill and effort, does not qualify." Significantly, the judge ruled that the technical change in medium, from oil to transparency, did not constitute such originality.10 The section below on Responses to Copyright, Access, and Cost Challenges outlines the positive implications of the Bridgeman decision for art history publications.

Footnotes

  1. David Landau and Peter Parshall, The Renaissance Print, 1470-1550 (New Haven: Yale University Press, 1994); Rebecca Zorach and Elizabeth Rodini, Paper Museums: The Reproductive Print in Europe, 1500-1800 (exh. cat., Chicago: David and Alfred Smart Museum of Art, University of Chicago, 2005).
  2. The following discussion of copyright is greatly indebted to the information provided by the United States Copyright Office at http://www.copyright.gov/and to discussions with Susan M. Bielstein, Carol Mandel, James Neal, and Eve Sinaiko. The best survey of the topic is Susan M. Bielstein, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property (Chicago and London: University of Chicago Press, 2006).
  3. It is worth noting that the temporal extension of copyright in artistic works for two or three generations of heirs stands in marked contrast to the more limited span of patents. Patent duration remains commensurate with the original goal of intellectual property law, which was to encourage inventors to continue to develop productive inventions while they enjoyed protection of their initial ideas for a reasonable period.
  4. There is, however, growing recognition in the U.S. Congress that copyright law may in certain circumstances have an excessively discouraging effect on the use of copyrighted material for productive and creative purposes. In 2005, Senators Orrin Hatch and Patrick Leahy, Chairman and Member of the Subcommittee on Intellectual Property of the Senate Judiciary Committee, requested that the U.S. Copyright Office conduct an inquiry into the problem of "orphan works," works known or believed to be in copyright whose owners or representatives cannot be located even after diligent effort. The Copyright Office submitted its Report on Orphan Works on January 31, 2006. The full report is available at http://www.copyright.gov/orphan/orphan-report-full.pdf. The detailed contents of the Copyright Office report go beyond the scope of this study, but it should be noted that its recommendations advocate the facilitation of the reasonable use of orphan works, propose measures of copyright liability protection for users of orphan works, and place limitations on monetary and injunctive relief for copyright claimants who appear after use has begun.
  5. Because of the complex layering of older and more recent copyright statutes, works published in or after 1923 have a total copyright term of 95 years; this means that the terminus ante quem for published works to enter the public domain will remain fixed at 1923 until 2018; in that year it will become a rolling date, so that in 2019 the ante quem year will be 1924; the next year it will be 1925, and so on.
  6. For a convenient summary of copyright laws in the U.S., including a helpful chart by Lolly Gasaway of the University of North Carolina, see Bielstein, Permissions, 16-33, esp. 27.
  7. This important extension of the notion of the artistic work protected by copyright is discussed fully by Bielstein, Permissions, 35-47. Bielstein argues that the distinction is particularly clear in the case of images of two-dimensional works of art such as paintings and works on paper, and that "these photographs do not qualify for protection under either U.S. or British law because they do not exhibit a minimum amount of originality" (40).
  8. According to the Architectural Works Copyright Protection Act of 1990, architectural drawings and visual models can be copyrighted as "pictorial or graphic works." The act specifies, however, that built architecture in publicly accessible locations may be freely photographed. Such photographs by others are copyrightable by the photographer rather than the architect. William S. Strong, The Copyright Book, 5th ed. (Cambridge, Mass.: MIT Press, 1999), 19.
  9. See, for example, Nelson Goodman, Languages of Art (Indianapolis: Bobbs-Merrill, 1968); Arthur Danto, "The End of Art," in Arthur Danto, The Philosophical Disenfranchisement of Art (New York, 1986), 81-115.
  10. The case was argued and decided in the same court, by the same judge, twice, with the same outcome: first in 1998, applying U.K. law (the plaintiff is a U.K. company), and again in 1999, applying U.S. law (the alleged infringement took place in the U.S.). For the 1999 ruling, see http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm.

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