If you’ve ever considered downloading a digital image of an artwork from a museum’s website, you probably know rather well that the world of copyright is an incredibly murky and difficult one to navigate. Even if artworks are in the public domain — in the US, this means copyright has expired, 70 years after an artist’s death — many cultural institutions still claim copyright on the digital representations that they have created and share on their websites. While exceptions largely allow users to download these pictures for personal, noncommercial, or educational purposes, these online legal conditions are often still difficult to completely understand, or sometimes, even find.
Wallace looked at the policies guarding 100 digital images of public domain works — “digital surrogates,” as she calls them — drawn from 52 institutions in 26 countries, including the Metropolitan Museum of Art, the British Museum, the Louvre, Art Institute of Chicago, and Rijksmuseum. Although online collections are intended to broaden public engagement with the works, Wallace is concerned the varying complexities of laws instead dissuades users, who may feel like they have to exercise greater caution.
“There’s no industry standard,” Wallace told Hyperallergic. “So what ends up happening is the user gets caught up in the web of legal consideration.
“Of course it would be a beautiful thing if there could be a standard, but the reality is that there’s so many different considerations that cultural institutions have to take into account, based on their collections or jurisdictions or educational missions.”
The results of her extensive research make up an open-access catalogue, which also details her methodology for choosing the artworks. Along with an array of essays, it features the 100 images, titled not by their official names, but their file names. Instead of the typical texts that accompany artworks is all the relevant metadata often embedded in their digital surrogates. Also presented is information related to copyright claims, country-specific exceptions, institution-specific licensing details, and the dimensions of both the material artwork and of the digital image.
The 100 digital surrogates are organized in the publication by Wallace’s four-tier system that categorizes potential risk in user reuse. The lowest, “open/no risk,” refers to images that may have copyright but are available for all types of use, including commercial; institutions with such guidelines include the British Library, National Gallery of Denmark, Walters Art Museum, Los Angeles County Museum of Art (LACMA), and Yale Center for British Art. The highest, “high risk,” refers to images that are generally prohibited from public use without express permission. Institutions with these stricter policies, which do not clearly list any legal exceptions, include Vienna’s Belvedere, Kunsthaus Zürich, Museum del Prado, Russia’s State Hermitage Museum, and the Royal Museums of Fine Arts of Belgium.
Finding these guidelines, Wallace discovered, was often no easy feat. At times she had to click through many links before finding copyright policies, which may be listed under any page from “terms and conditions” to “legal notice” to the broad “about this site” and even “contact.”
“Many museums phrase their policies in the negative, which comes across as very restrictive,” Wallace told Hyperallergic. “You should make it accessible in plain language — write it in the positive, rather than state what users can’t do.” As examples, she cites the guidelines of the National Gallery of Denmark — although it is in two places — and the Museum für Kunst und Gewerbe Hamburg (MKG), which provides guidelines on how to respect the original artwork and how to protect the reputation of the work’s creator and provider.
These policies should ideally also stick with each digital surrogate as part of a museum’s proper, comprehensive management of its digital collection: if it provides images for worldwide download, attached copyright information presents users with less risk to liability for infringement. Metadata makes this possible: most images already have EXIF data embedded by digital cameras; XMP data may be added during editing processes; IPTC tacks on descriptive data. Of the 100 images Wallace examined, 37 had no metadata at all; only 41 of the 63 revealed IPTC data, but she describes most of the information as “basic or minimal.” (On the other hand, some institutions have such extensive metadata she could not include all of it in the catalogue.) Sixty-five of the digital surrogates had no information at all related to their copyright use, so downloading one essentially strips it of legal context — such an image becomes what she calls “an orphan because it’s divorced from the website.” Of course, you also have to consider the role of digital asset management: how a museum decides to deliver images – whether through automatic downloads, Dropbox links, or through email — may impact the attachment of metadata, which some services may simply strip.
Still, some information in the metadata was inconsistent with the institution’s website terms. Audubon’s “Birds of America” has metadata that says “© The British Library Board” even though the British Library’s website marks the digital surrogate as in the public domain. Such disparities, largely stemming from policy changes over time, add another cause for caution on the part of users and are issues for museums to keep in mind or investigate.
Her own creation manifested in the form of a one-day, physical exhibition that occurred this week at Glasgow’s The Lighthouse. The 100 images, organized chronologically according to artist death years, were each printed to their original artwork’s actual size and accompanied by their printed metadata. Turning a digital surrogate back into something physical, Wallace said, was meant to offer viewers a sense of materiality to the slew of information she compiled and an opportunity to reflect on the quality of institutions’ digital reproductions. Seeing them printed allows for close comparison of the various digitization process that yield different pixels-per-inch: some works, she said, were beautifully detailed and well suited for serious research, showing even cracks in the paint; others were so pixelated they took on a wholly new form.
Wallace also considers the compiled 100 digital images as a kind of archive that captures a particular moment of our digital heritage. She had downloaded these digital surrogates prior to January 1, 2016; since then, museums may have changed their policies, and as the image of Audubon’s bird exemplifies, those in charge of digitization efforts may not have updated the metadata of their images. Wallace’s particular pictures, bound to specific conditions, may help to track progress, which is especially important as institutions continue to digitize their artworks and people increasingly expect to engage with art online. As she said, it may be a good idea to revisit and replicate this project in five years to see whether copyright information is made more readily perceptible to all who seek it — to see if public access to art really is expanding.
Copyright stays with the creator of a work for 70 years after her/his death. Then it’s in the public domain; it’s that simple. Museums claiming “copyright” for two-dimensional pictures of two-dimensional works of art after the 70-year limit are sandbagging you. They have no such legal claim in the USA. According to a 2008 court decision, a 2-d photo of a 2-d work is not copyrightable in itself, because its only purpose is to accurately reproduce the original; there’s no creative input that could fall under copyright protection.
Mr. Frank has it right… almost. There’s also a “90 years after publication” rule which applies to some works (generally not “unique” works like paintings), but I’ve never been able to quite figure that one out.
Actual facts on copyright laws; U.S. legislative codes included: https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
Actual facts on copyright laws: List of countries’ copyright lengths:
Full Google search on copyright lengths for those seriously interested in actual laws:
If people would just take the time to cite the creator/copyright holder’s name with the artwork they’re referencing, wouldn’t that be enough?
If the user is placing the image into a “new interpretive context” i.e. an academic book, article, or presentation this is grounds for a fair use claim, meaning no copyright fees should be paid at all. See CAA fair use guidelines http://www.collegeart.org/fair-use/
Fascinating piece of work by Andrea Wallace.
Michelle Greet’s assessment below surprises me, but then again I am not a lawyer or even particularly knowledgeable about copyright. The decision in favour of Associated Press against Shephard Fairey, over his fairly significant transformation and interpretative context of that Obama photo suggests that academic institutions perhaps should be a bit less convinced that publishing in their journals, books etc shreds the copyright.
As Michele Greet recently commented, in the United States, users of copyrighted materials have more options. Here, people using images of works (even if the works are from collections in other countries) need not always be limited by museum policies. U.S. copyright law includes the doctrine of fair use, which allows the use of copyrighted materials without securing permission under certain circumstances. For example, most scholarly publications can reproduce images of works of art relying on the doctrine of fair use, even online, as can most museum catalogues
and educational materials. Artists who appropriate or remix images may do so under the doctrine of fair use if the use is transformative. They need not ask a museum’s permission for their
transformative uses. For a comprehensive explanation on the principles and
limitations of fair use in the visual arts, see the College Art Association’s Code of Best
Practices in Fair Use for the Visual Arts at http://www.collegeart.com/fair-use.
Comments are missing the point – sure copyright law seems straightforward, but then there is potentially a lot to be gained/lost through licensing digital surrogates of works of art, and some fun court cases to go along with it that are called up or ignored – just ask Bridgeman, Getty, etc. Not to mention TPMs and differences in national copyright law that are fun little rabbit holes when you want to share across borders. That’s what really makes this a great project.
I’ve ran into a similar situation but with a twist. I take photographs in museums and choose art in the public domain, but I transform my photographs into 3D models.
Here are links to my own personal experience regarding the capricious claims asserted in the name of “copyright:”
Granted, museums and institutions are obligated to protect the copyright of artwork from living or recently deceased artists, but it is a stretch to claim a copyright on far older works of art.
I’ve had discussions with museum employees about how this guides their photography policies for visitors too. The basic fear many institutions have is a loss of control over the image of the art they display. Another is a fear of the loss of much-needed income if visitors sell their photos of art from museums.
Finally, a couple of interesting videos:
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