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Re: So you wanna talk copyright . . .



At 11:18 AM 11/15/00 -0500, Hamson, Susan wrote:
Colleagues.

I have a copyright scenario for you.  I'm interested in any feedback you
may have.

We received a donation recently of 100+ color slides.  The slides are of
museum artifacts (in situ exhibit photos) taken by the donor (we're
talking tags, exhibit labels, the whole ball of wax here).  Some are of
theme rooms (recreated laboratories).  There are two schools of thought
regarding these slides and who owns copyright.

1.  The photographer owns copyright because he's the one who actually took
the picture.
2.  The museum owns copyright because he's taken a picture of the artifact
as it is on display in the museum.

I'm falling into number two, but it's created enough of a stir around here
that I thought I'd throw this out to you in lieu of another election
debate.  :)

How about answer 3: none of the above?  :-)

As with many of the seemingly simple questions asked on this listserv, the
answer is worthy of a long essay or a graduate course.  Copyright issues in
particular point out the danger of what has been described to me as
"Education-By-Asking-Strangers."  The following should therefore be taken
with a big grain of salt, as well as all the disclaimers about me not being
a lawyer, etc., etc.

My guess is that answer 1 is closer to the truth, but with a lot of
caveats.  In general, a photographer is considered the author of the work,
and so would have a copyright in the photographic composition of the
slides.  You will have to consider, however, in what context the donor took
the slides.  Was he or she an employee of the museum?  If so, then the
museum might be the author, and would own the copyright in the slides.  Did
he or she do the work under contract with the museum or some other
agency?  The contract might specify that copyright belongs to the group
that hired the photographer.

Let's assume, though, that the donor was a private individual who took the
images for his or her own use.  In that case, copyright in the photographic
arrangement would belong to the donor.  He or she may have signed a license
agreement with the museum stipulating that the photographs could not be
loaned, duplicated, published, etc., and by donating the slides to you that
contract may be violated.  My understanding (and I am weak on this) is that
the museum could only sue the donor for breach of contract; I don't believe
that your actions can be restricted by a contract to which the donor agreed.

What is copyrighted?  I said the photographic arrangement.  There may be
elements in the photographs (exhibit labels, signs, etc.) that have their
own copyright.  Reproducing that copyrighted material by reproducing the
slide might indeed be a violation of the underlying copyright in the
material, unless one of the exemptions in the copyright law allows for the
copying.  If everything in the slide is in the public domain, then the only
copyright at play would be that of the photographic arrangement.

Answer 2 could only be true if arranging artifacts in a display in a museum
or recreating a laboratory was itself subject to copyright
protection.  This is a very difficult question that as far as I know has
never been directly addressed in the courts.  Off the top of my head, I
would guess that an exhibit design would not be copyrightable, but it would
depend on a case-by-case investigation.  You cannot copyright utilitarian
or functional items, and you can only copyright expression, not ideas.  If
there are expressed design elements present that can be separated from the
functional elements, those can be copyrighted.  In general, though,
copyright for designs (including architecture) has been very hard to
establish - which is one reason why there is now separate law for boat hull
designs and architecture.  Remember, too, that copyright is only one of the
issues at play here.  Doctrines other than copyright and found at the state
level, such as misappropriation or unfair competition, might be used to
challenge your use of the images.

What museums (and some special collections and archives) do try to do is
exert copyright-like control over the use of items in their
collections.  The control is based not on any intellectual property right
they may have in the material, but on their ability to control
access.  Whether these controls are legal or desirable is a very
interesting question that I suspect will come into play more over the next
few years.

All of the above is idle, albeit to me interesting, speculation.  The
question you haven't addressed is if it matters who owns the
copyright.  Assume that the museum does have a copyright interest in the
design of the museum exhibition.  If you should publish one of the
photographs of the exhibition, is the museum going to sue you?  How do you
plan to use the material, and at what risk will that use put you?  Might
your use of the material fall within one of the exemptions in the copyright
act?  For political reasons, might it not be smarter to get the museum's
permission first?

Addenda:

Dean DeBolt wrote:
As a Board Director of an historic house, if a photograph is
taken of the house, the photographer has copyright to the photo,
however permission to use the photograph falls to the Board
because we have copyright in the likeness of the house!

This is dead wrong.  For houses built before 1990 there is no copyright
protection.  Architectural plans and drawings could be copyrighted, but the
house itself could not.  It was perfectly legal to visit the house, measure
it, take photos of it, and build as close a reproduction as you wanted.  PL
101-650 added architectural works to the list of items protected by
copyright, but only if the building was built after 1 Dec. 1990.  Even
then, the law in section 120 says explicitly that "The copyright in an
architectural work that has been constructed does not include the right to
prevent the making, distributing, or public display of pictures, paintings,
photographs, or other pictorial representations of the work, if the
building in which the work is embodied is located in or ordinarily visible
from a public place."  In sum, even if the building is copyrighted, you can
still make a photo of it from a public place.  No permission is needed to
use the photograph.


---------------------------------------------------------------
Peter B. Hirtle
Co-Director                                pbh6@cornell.edu
Cornell Institute for Digital Collections     607/255-4033 (ph)
2B Kroch Library                                   607/255-9524 (fax)
Cornell University                <http://cidc.library.cornell.edu/>
Ithaca, NY  14853
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