Museum Collections and the Question of Copyright:
Privatizing the Public Domain

Bradley L. Taylor

As emerging technology brings the reality of image databases closer to the everyday lives of Americans, interest in the content of such databases is certain to grow considerably. A recent CNN telecast segment suggested that the "race for content" would be one of the great business stories of the current decade and backed its assertion with a report on Microsoft founder Bill Gates's purchase of the Bettman Archives for his Corbis operations in suburban Seattle. One immediately wondered why one of the wealthiest men in the world would have an interest in a collection of old photographs, many of which fall within the realm of public domain and are, thus, ostensibly available for anyone to use. The answer lies in an examination of the legal protection extended by U.S. copyright law to visual resource collections and, even more so, by the protection and control vested in outright ownership of noncopyrighted visual materials. As we shall see, lack of specificity in the law and an almost nonexistent record of legal challenge to further refine existing law have allowed the rights of ownership (both individual and institutional) to take precedence over the public's right of access to public domain material.

The fair use of copyrighted materials, codified in Title 17, section 107 of the U.S. Code, conceptually seeks to balance the access rights of users against the rights of copyright holders to be recompensed for the reproduction, sale, or performance of their artistic or intellectual creations. Today, those interested in the development of image databases need to be mindful of the rights legally afforded copyright holders to control, to a certain, unspecified extent, the reproduction, distribution, adaptation, performance, and display of their works. As the rise of interest in digitized content grows each year, so, too, does the concern of those who have traditionally "maintained" visual resource collections, who see the rush for digitized content as a challenge to their stewardship over these materials. While copyright law extends its protection to information packaged in a wide variety of non-print formats, American museums, specifically, struggle to find the legal protection needed to help them assure the continued integrity of collections entrusted to their care.

While libraries can generally depend upon copyright law being directly applicable, for better or worse, to a greater share of their holdings, the situation with museums is far more complicated. In the realm of visually oriented materials alone, the law distinguishes between works of visual art (works of fine art generally executed in editions of less than 200) and pictorial, graphic, and sculptural works (visually oriented works done in larger editions or for ends different than purely artistic expression) and affords different coverage to each group. For material artifacts, those objects culled from everyday life that form the basis of such immense collections as the Henry Ford Museum and Greenfield Village, Colonial Williamsburg, the H. F. du Pont Winterthur Museum, and countless state and local historical societies and house museums, protection offered by copyright is even more difficult to assess.

Copyright law addresses the matter of protection for material artifacts in only the most oblique ways. As Robert Gorman asserts, "the most difficult issue that arises regarding the copyrightability of pictorial, graphic, and sculptural works concerns those works, typically 'sculptural,' that serve useful functions, such as furniture, garments and architecture" (Gorman, p. 29). Gorman refers to such works as "useful articles" and cites Congress's attempts to further define applicability of copyright status:

Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. (Gorman, p. 30)
The waters are only further muddied with the realization that the initial definition of pictorial, graphic, and sculptural works also includes provision for the extension of copyright protection to "applied arts" without further defining the category. It would seem then that, at best, copyright protection extends to material artifacts only in very strictly defined cases and that museums will need to explore other ways of protecting their collections until further testing in the courts clarifies copyright status for materials ranging from antique automobiles to rocking chairs, from teapots to fishing poles.

Major museums, both artifact oriented and fine art oriented, have indeed long explored other means of safeguarding their holdings. Even in the case of art museums, the content of whose works clearly falls under copyright protection, much of the artwork in question has long since passed into public domain. Museum precedent has taken the form of protecting collections by limiting on site photography and by insisting that reproductions of artwork be done only from museum supplied, copyrighted, photographs or transparencies. Museums can thus ensure the use of high quality images that will show a museum's holdings in a way most flattering to the institution. Policy shaped by the National Museum of American Art offers a representative case in point. While the museum's web based FAQ responds positively to the use of digitized images in "non-commercial academic work," a resounding "no" is given when the question turns to using images "public domain or otherwise" on a CD-ROM. While motivation for the denial can only be surmised, one might allow that the museum is merely attempting to prevent any greater distribution of low resolution images CD-ROM packaging might allow.

We can also see, however, that such ownership also allows this museum (and by extension, others) to enjoy a system of payments, not unlike royalties, for those seeking permission to use NMAA images in publications or other commercial ventures. Copyright status of the works of art notwithstanding, museums have clearly found a way to make their rights of ownership work in their favor. Notions of copyrightability of either material artifacts or public domain works of fine art are really moot notions when it concerns the practicality of reproducing works from most major museum collections. For scholars or entrepreneurs contemplating a need to assemble or publish a significant number of images from museum collections, forging positive ongoing working relationships with museums or galleries will be essential. Even an individual with the resources of Microsoft founder Bill Gates has come to appreciate this.

A review of Gates's effort to assemble a commercial database incorporating digitized images of works of art from the world's leading museums clearly demonstrates the powerful hold museums have on their collections. An August 1994 New York Times story provides some critical history:

Museum professionals reacted with a kind of collective shudder six years ago when Bill Gates...announced plans to buy rights to reproduce famous works of art digitally....Curators fear that the rights to this brave new digital world will slip away for less than they are worth and that they can be pirated or used in oafish advertisements or other ignoble ways....They also fear that computer images of low resolution and inexact color will proliferate. (Patton, p.n.p.)
The growth of Gates's Continuum Productions (as the venture was then known) met considerable resistance as only a handful of museums were willing to cede digital rights outright to Gates. Public domain status of the artwork notwithstanding, by November 1994 Continuum had amended their original strategy, and instead
bought licensing rights to hundreds of thousands of images, from a number of world-famous well as from scores of individual photographers, historical archives and private collections....Gates...also license[d] the information that describes the images, and [wrote] most of it with the help of curators and academics. (Lister, p.n.p.) (emphasis mine)
The growth of Gates's Continuum venture must be ascribed in some part to Gates's decision to pursue nonexclusive licensing agreements with the museums instead of insisting on outright purchase (the Bettman purchase being only a very recent exception to this pattern) and to his willingness to cede some portion of control over didactic material to museum professionals.

A September 1995 Seattle Times article further demonstrates just how successful museums had been in winning Gates's cooperation on a host of issues that would ensure protection of their collections. Gates's company, now called Corbis, had just introduced a watermark that could be used to identify--and protect--Corbis generated images. Reporter Paul Andrews noted, "With security and protection of intellectual property being chief concerns for online transmissions....Corbis'[s] partners and clients need reassurances the works' value is protected in electronic form....Protecting its own work, as well as images licensed from artists, is key to Corbis'[s] marketing strategy" (Andrews, p.n.p.). The transformation had been complete: Gates had moved from a position of seeking exclusive access to reproduce public domain works to one of championing the shared values of the museum community.

Where does this leave the rest of us? Those of us who have neither Gates's financial resources nor a desire to build a large commercial enterprise built on the inclusion of digitized representations of entire museum collections? Those of us, perhaps, who might seek to create smaller databases for use in the classroom, for research, or for information dissemination to other scholars or enthusiasts? It leaves us in a decidedly gray area: either to decide that vagueness in the existing law concerning public domain artworks and museum artifacts and the applicability of the fair use doctrine allows for one course of action, but that the practicalities of controlled access to such collections suggests another. As digitized content continues to become "big business," there are bound to be additional refinements to copyright law as museums and entrepreneurs continue to stake ownership claims to public domain materials. It can only be hoped that such testing of the law will also clarify critical access issues for those of us with equal right to what is, indeed, our collective visual heritage.

Sources Cited

Andrews, Paul. "'Watermark' May Be a Watershed Development for Protection of Electronic Art." Seattle Times (September 24, 1995), p. C3

Gorman, Robert A. Copyright Law. Washington, D.C.: Federal Judicial Center, 1991

Lister, David. "The Bill Gates Old Masterplan." The Independent (November 15, 1994), p. 24

National Museum of American Art. Rights and Reproductions Information.

Patton, Phil. "The Pixels and Perils of Getting Art On Line." New York Times (August 7, 1994), sect. 2, p. 18