0.3 Changing landscape

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In recent years, there has been increasing debate in the academic and publishing communities about the negative effect of fees—which some believe are excessive—for the use of museum images in scholarly publication. The Burlington Magazine devoted an editorial to the topic, stating, “For major museums, charges are supposedly a vital source of income but are also becoming the cause of much ill-will and antagonism. This is because of the often scandalously high costs for permission to reproduce rather than the charge for supplying the image itself.” “Editorial: Copyright: fair or foul?” The Burlington Magazine 148 (2006): 659. In 2005, the renowned publisher John Nicoll charged that one cause of the crisis in scholarly art publishing is “the rapacious and unwarranted reproduction fees charged by museums corrupted by commerce.” John Nicoll, "Why art publishing is in crisis," Apollo 161, no. 519 (2005): 72. Both articles questioned the validity of museums’ assertions of intellectual property rights over photographs of works in the public domain—typically the basis for charging licensing fees.

In Hilary Ballon and Mariët Westermann’s study, Art History and Its Publications in the Electronic Age , the authors “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.” Hilary Ballon and Mariët Westermann, Art History and Its Publications in the Electronic Age (Houston: Rice University Press and Washington D.C.: Council on Library and Information Resources, 2006), (External Link) , 34. A significant influence in the controversy is the 1999 Bridgeman Art Library v. Corel Corporation case in which a U.S. District Court judge ruled that photographic reproduction of two-dimensional works of art that are in the public domain constitutes slavish copying, not copyright infringement. The 1999 ruling is available at (External Link) . A symposium of legal experts, rights holders, photographers and their representatives, publishers, artists, scholars, and staff from museums and archives was held in April 2008 to explore “both the legal foundation for Bridgeman , as well as the implications of assertions of copyright in works in the public domain.” Gretchen Wagner, “Who owns this image? Art, access in the public domain after Bridgeman v. Corel,” Images, the newsletter of the VRA 5, no.3 (2008), (External Link) . Although there was no consensus on whether Bridgeman was correctly decided, copyright scholar Rebecca Tushnet notes in her synopsis and review of the proceedings that “image permissions aren’t great revenue generators and there is no real prospect that they will become so. Given that, it seems that restrictive licensing is a mistake, unless we decide that a non-copyright owner is for some reason especially entitled to decide what ‘bad’ uses are.” Rebecca Tushnet, Rebecca Tushnet’s 43(B)log, comment posted April 30, 2008, (External Link) .

In January 2008, the Max Planck Institute of the History of Science convened an international group of scholars and representatives of leading museums, libraries, visual archives, and publishers to discuss the barriers to publishing cultural heritage objects. The resulting recommendations, published in January 2009, call upon museums to meet the needs of scholars by providing reasonably priced or freely accessible high-resolution images for both print and web-based uses. They also call upon scholars to act responsibly by using correct attributions and obtaining rights to reproduce copyrighted material when necessary. Max Planck Institute for the History of Science, “Best Practices for Access to Images: Recommendations for Scholarly Use and Publishing,” Berlin, January 9, 2009, (External Link) .

Perhaps the most eloquent and compelling voice in the discussion comes from within the museum profession itself. In 2005, Kenneth Hamma, the now-retired Executive Director for Digital Policy at the J. Paul Getty Museum in Los Angeles, suggested that the nonprofit status enjoyed by museums binds them to purposes that serve the good of the public—not individuals, not specific classes, but the public at large. Without public policy that is committed to the premise of broad access and long-term preservation, collecting institutions may not enjoy the benefit of nonprofit status. Kenneth Hamma, “Persistence of Memory” (paper presented at Northeast Document Conservation Center conference, 2005). Hamma applied this thinking to the matter of “public domain art in an age of easier mechanical reproducibility”:

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…. 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… .Because museums…are part of the private non-profit sector, [they have an] obligation to treat assets as held in public trust…. To do otherwise undermines the very nature of what such institutions are created to do. Kenneth Hamma, “Public domain art in an age of easier mechanical reproducibility,” D-Lib Magazine 11, no. 11 (2005), (External Link) , 2-3.