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Public domain art in an age of easier mechanical reproducibility

Published online by Cambridge University Press:  06 June 2016

Kenneth Hamma
Kenneth Hamma*
Affiliation:
J. Paul Getty Trust, 1200 Getty Center Drive, 400, Los Angeles, CA 90049-1681, USA
*
Email: [email protected]
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Abstract

The current information environment presents opportunities for sharing information and enhancing the public domain of creative resources for education, research and the public good. Because the sharing paradigm for digital resources is fundamentally different from any we experienced in the analog world, practices of non-profit cultural heritage collecting institutions should be re-examined and re-evaluated with respect to aligning mission with new opportunities. One practice that deserves attention, particularly in this new environment, is the continued assertion of intellectual property rights in images of creative works that are themselves in the public domain.

Type
Research Article
Information
Art Libraries Journal , Volume 31 , Issue 3 , 2006 , pp. 11 - 15
Copyright
Copyright © The Art Libraries Society 2006

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Footnotes

A contribution in memory of Stephen Weil

References

1. Benjamin, Walter, ‘Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit,’ Zeitschrift für Sozialforschung 5, no. 1 (1936).Google Scholar
2. Valéry, Paul, Pièces sur l’art (Dijon: Maurice Darantiere, 1931).Google Scholar
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 shortsighted’, Boyle, James, Shamans, software and spleens: law and the construction of the information society (Cambridge, Mass: Harvard University Press, 1966): 125–139.Google Scholar
4. Bridgeman Art Library, Ltd. v Corel Corp., 36 E Supp. 2d 191 (S.D.N.Y. 1999); Barry G. Szczęsny, ‘Bridgeman Art Library v. Corel Corporation: excerpts from April 1999 American Association of Museums Annual Meeting presentation, “What’s happening in Washington”‘, Rights and Reproduction Network, American Association of Museums, http://www.panix.com/~squigle/rarin/corel2.html.Google Scholar
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 Fremont-Smith, Marion R., Governing nonprofit organizations: federal and state law and regulation (Cambridge, Mass.: Belknap Press of Harvard University Press, 2004), 1–18.Google Scholar
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 (http://www.kdcs.kcl.ac.uk/pubs/USMuseum_ SimonTanner.pdf), 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 (1999), http://www.chin.gc.ca/English/Intellectual_ Property/Cornmercial_Markets/index.html and Glen Bloom, An analysis of economic models for administering museum intellectual property (1997), http://www.chin.gc.ca/English/Intellectual_ Property/Economic_Models/copyright.html, ‘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.’Google Scholar
7. The Tanner report cited above notes, ‘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.’ (p.35)Google Scholar