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Govan Kills Zombie Copyrights

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LACMA’s website has begun releasing publication-quality digital images of out-of-copyright works in its permanent collection. It appears to be the first major museum to do this, and that’s big news. It may herald the end of “zombie copyrights.”

A zombie copyright is one asserted over a creator’s long-dead body. In the case of a museum, it refers to the practice of claiming a de facto copyright to an older artwork by way of documentary photographs. At left is LACMA’s Easter Island Moai Kavakava (skeletal ancestor figure, c. 1800). It was created in a culture that never knew copyright. Even if it had been copyrighted, the artist has been dead a couple hundred years. It would be public domain by now.

Nonetheless LACMA, via “Museum Associates,” was claiming a 2008 copyright to this image. They owned the photograph you see here, professionally lighted against a tasteful cyclorama. A lot of effort and skill went into that photo. That granted, the attraction is the art of the long-dead Easter Island carver, not the 21st-century photographer.

You could snap a cell phone photo of the Moai Kavakava in LACMA’s galleries. The result wouldn’t be anything like this and would be suitable only for the crudest e-mail or art blog usage (this one, sometimes). In this second-hand way, 21st-century museums retain control over the reproduction of 19th-century and earlier objects in their collections.

The photographer of a 3D work at least has scope for creative interpretation though lighting and backdrop. Not so with 2D works. Claiming copyright to a documentary copy of a painting, drawing, print, or photograph is like Sherrie Levine claiming copyright to Walker Evans. But museums do it all the time. As far as the Louvre is concerned, the Mona Lisa is copyrighted.

Carol Vogel, in The New York Times, asked LACMA’s Michael Govan whether the new policy means that people could make “posters or potholders” from LACMA’s high-res images, cutting into gift shop profits.

“It’s negligible in the long run,” Govan replied. “My view is that it’s better to get the images out there so people will want to come and see the real thing.”

He’s absolutely right. And in case you wonder how the LACMA policy differs from the recently launched Google Art Project, which has gotten a zillion times more attention, check out the Google site’s FAQ:

Are the images on the Art Project site copyright protected?
Yes. The high resolution imagery of artworks featured on the art project site are owned by the museums, and these images are protected by copyright laws around the world. The Street View imagery is owned by Google. All of the imagery on this site is provided for the sole purpose of enabling you to use and enjoy the benefit of the art project site, in the manner permitted by Google’s Terms of Service

Why hasn’t every museum director taken LACMA’s stand? There are three main worries, all kind of silly. The two Vogel and Govan mentioned are:

(a) It will cut into licensing revenue.

(b) People will look at the high-res images and not go to the museum.

Item (a) ignores the impulse purchase factor. People who buy a tchotchke in a museum gift shop do so because they can see it and hold it in their hands. They did not go to the museum planning to buy a Marie Cassatt coffee mug; they bought it because someone else conceived the idea and executed it for them, and the museum gift shop decided to display it.

Were copyrights a cash cow for museums, that would be one thing. The reality is that copyright fees are as trivial to museum bottom lines as NPR is to the U.S. budget. I suspect that the museum employees handling copyright permissions rarely take in enough to pay their own salaries.

Idea (b) is even less credible. The screens on our desktops, laptops, pads, and phones are tiny, relatively speaking. The web is a “pull” experience, where you get what you search for. Museums are “push” experiences, curated by actual curators.

Okay, there might be Virtual Reality Pods in the Year 2525 rendering museums obsolete. Why should that influence museum policy now? Do you really believe it’s going to make a difference?

A lesser concern is—

(c) The museum would not be able to vet reproductions, leading to an avalanche of “tasteless” junk that would dishonor the dead artist.

A tour of museum gift shops will quickly disabuse you of this hypothesis. There’s a lot of arguably tasteless stuff right now. In any case, taste is relative. Would Edvard Munch like the Wes Craven Scream franchise, or hate it, or approve it only on the condition of getting X percent of the gross? This is an unanswerable question. Copyright law was never intended to answer it.

The purpose of copyright law is to allow living artists to make a living. Copyright remains important with musicians, writers, TV producers, and filmmakers (it’s your guess whether that will amount to a hill of beans in this crazy digital singularity).

Do any of today’s visual artists make a living selling copies? Um, Shepard Fairey, maybe? Otherwise, I don’t think so. The art market erects a Chinese wall between owning a print-out of Gilbert & George’s Planed (left, a digital file offered for free on the web in 2007) and an editioned G&G print sold through galleries. There’s not the same distinction between having an iTunes Dr. Dre track and a pirated copy. The art buyer expects/fantasizes about one day reselling at a profit, or donating the piece to a prestigious museum. Not so the buyer of a Jonathan Franzen eBook.

In any case, we’re talking about dead artists here. Zero percent of gift shop revenues go to Vermeer. It makes sense to reason as LACMA has, that providing high-quality digital files of out-of-copyright works is one of the responsibilities of stewardship.

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Comments

  1. “I suspect that the museum employees handling copyright permissions rarely take in enough to pay their own salaries.”

    In my experience in the museum world, Rights & Reproductions employees are actually put under significant pressure to generate enough revenue to pay their own salaries and to justify their own jobs. But the catch-22 is that they are often not staffed adequately to do so, or they have methods of generating revenue taken away from them… which doesn’t stop them from being blamed for not generating adequate revenue.

  2. by Anne Onimousse

    “As far as the Louvre is concerned, the Mona Lisa is copyrighted”. As far as you are concerned, you should be aware that copyright law might be different in France from what it is in the US.
    Wonderful way of showing the provincial/imperialist mindset that would want everything in the world to be as it is in America. You may think it’s wrong, but there might be legal reason why it is so in a different country.

    FYI, a lot of the Louvre’s collection is downloadable through its Atlas and other databases, and these are good quality pictures, if not publication-ready ones.
    You might not be able to print them on a mug, but you can enjoy a pic of Mona Lisa that includes a view of the frame. You need to enter the correct and entire spelling of the artist’s name for best results. And the databases have been online for a few years now.

    Here http://www.louvre.fr/llv/oeuvres/bdd_oeuvre.jsp?bmLocale=en

  3. by Photographer guy

    This is a very interesting and complex issue that goes right to the heart of how we as a society define creativity. I fear that you have oversimplified things considerably and are maligning cultural institutions along the way. As a photographer at a cultural institution, I’d like to play devil’s advocate here.

    Your statement:
    “LACMA, via “Museum Associates,” was claiming a 2008 copyright to this image. They owned the photograph you see here, professionally lighted against a tasteful cyclorama. A lot of effort and skill went into that photo. ”

    As you point out, the copyright is not on the statue but on the photo of the statue. Yes, the main attraction is the public domain statue, but, that does not in any way preclude the making of a new original creation that features the statue. You can argue that this photo fails to be a new creative work but that enters into a legal debate on what creativity is that I, as an artist, certainly don’t welcome.

    “The photographer of a 3D work at least has scope for creative interpretation though lighting and backdrop. Not so with 2D works. Claiming copyright to a documentary copy of a painting, drawing, print, or photograph is like Sherrie Levine claiming copyright to Walker Evans. ”

    This is a very different point. The process of copy-stand photography of 2d objects serves a different purpose — to replicate the original accurately and nothing more. I’m not defending this as newly created work. That said, I have seen flat 2d objects photographed with such creativity and originality such that they do stand as newly authored creative works. Where do we draw the line?

    “Why hasn’t every museum director taken LACMA’s stand? There are three main worries, all kind of silly. The two Vogel and Govan mentioned are:
    (a) It will cut into licensing revenue.”

    At the cultural institution where I work, that licensing revenue pays for the digitalization that would not happen otherwise. This provides “fair use” access for those not needing the license. Those that are making money on the image, pay a fee. Those in scholarly activities don’t pay and benefit from those who did. Not an unreasonable deal.

    “(b) People will look at the high-res images and not go to the museum.”

    In my experience, this is very true, especially with documentary images of objects like scanned books. Having seen the digital image, many people feel that they have seen the original, which they have not. Young people, the “digital natives,” are particularly prone to making this mistake.

    “(c) The museum would not be able to vet reproductions, leading to an avalanche of “tasteless” junk that would dishonor the dead artist.”

    It has nothing to do with taste, which can’t be regulated. It does have to do with the disconnection of a cultural object from its source and context, where it may be deriving much of its meaning. Not to say that interpretation is only allowed by museums but there is a real issue of misrepresentation out-of-context.

    “The purpose of copyright law is to allow living artists to make a living. ”

    Exactly. You are excluding photographers working for museums photographing public domain works? Who decides who is and isn’t an artist?

    “It makes sense to reason as LACMA has, that providing high-quality digital files of out-of-copyright works is one of the responsibilities of stewardship.”

    Another important responsibility of stewardship is the maintaining of provenance, collection context, guarding against gross misrepresentation of what an object physically is. To do this requires adequate control and tracking of digital images. This costs real money. If LACMA can afford to do this for free and donate the new images to the public domain, that is great. Don’t hold it against other institutions that decide that they cannot afford to be giving away services and rights. These are not easy times for cultural institutions. Why vilify them?
    This is not a simple Good Guys (open source) vs. Bad Guys (museum copyrights) issue.

    Thanks, glad to have this discussion going.

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