Copyright laws for famous artwork?

June 28, 2006 12:21 PM

What copyright laws and other legal aspects do I have to look into before I can hang up famous artwork in public places. I don't have any specific pieces of art yet but I intend on hanging up a very broad selection of paintings (only paintings). Do I have to contact the museums that own them? Will there be a fee?

Also if you have any suggestions for famous paintings with very lenient copyright laws I would love to hear them.

posted by pwally to Media & Arts (29 answers total)

You're asking about hanging prints, yes?
posted by Kirth Gerson at 12:36 PM on June 28, 2006

Response by poster: Uhh yes of course...
posted by pwally at 12:40 PM on June 28, 2006

Well, if you're using prints, I assume you mean commercially produced prints, right? In which case, the company that made the prints presumably cleared copyright in order to produce and sell them. So, as the purchaser, you're free to buy them and to hang them up. Is there something I'm missing?
posted by scody at 12:43 PM on June 28, 2006

It will depend entirely on how old the art is. If it was originally published prior to 1923 then it's almost certainly in the public domain now, and you can do whatever you want with it. It gets more complicated for newer works.

You also didn't mention what country you live in, which is kind of important when asking a legal question, because laws vary.
posted by Rhomboid at 12:48 PM on June 28, 2006

If it was originally published prior to 1923 then it's almost certainly in the public domain now, and you can do whatever you want with it.

Not if it was painted by an artist with estates that are very, er, active in controlling reproduction and licensing -- such as Magritte, Picasso, and Matisse, just to name three of the biggies.
posted by scody at 12:50 PM on June 28, 2006

Did you even bother to read that link?
posted by Rhomboid at 12:55 PM on June 28, 2006

Since you are not copying them, then there would be no copyright violations...however if you are charging admission to see this display well that's different, and opens up a whole 'nother can of worms.
posted by Gungho at 1:07 PM on June 28, 2006

Rhomboid: Yeah, I did read the link, and it says exactly nada regarding the potentially complex issues involving reproduction and display of famous visual artworks. I work at a large art museum publishing catalogues, and so deal with rights & reproduction issues on a near-daily basis. I assure you, you cannot blithely "do whatever you want" across the board for artwork produced prior to 1923, because aside from copyright issues, there are extensive licensing and reproduction issues involved as well, which can involve some combination of museums, estates, and/or international licensing agencies. But if you'd like to take on the Magritte, Picasso, or Matisse estates (not to mention agencies like VAGA and ARS) by "doing whatever you want" with one of their images from 1922 just to see what will happen, rhomboid, be my guest.

In any event, pwally: please clarify what you mean by "hanging up famous artworks in public places." For example, there's a potential difference between decorating a cafe you run with a couple of prints, vs. doing a public art project that involves hundreds of reproductions of Picasso's Guernica.
posted by scody at 1:12 PM on June 28, 2006

there are extensive licensing and reproduction issues involved as well, which can involve some combination of museums, estates, and/or international licensing agencies.

Please do explain how there could possibly be "licensing and reproduction issues" involved with an item in the public domain. By definition, this is impossible.

"Therefore, the U. S. copyright in any work published or copyrighted prior to January 1, 1923, has expired by operation of law, and the work has permanently fallen into the public domain in the United States." -- copyright.gov

"A creative work is said to be in the public domain if there are no laws which restrict its use by the public at large. " -- wikipedia page on public domain
posted by Rhomboid at 1:57 PM on June 28, 2006

It'll depend, but I expect what scody is talking about is simply that if you decide to piss off certain groups selling modern paintings by doing as you like with works that are not copyright protected, they can choose to ban you from any of their presently copyrighted works.

A museum or art gallery would, of course, be scared out of their pants if they couldn't display decent modern art, so they'd complacently do as they're told (yay to media cartels).

But if you want to take a Picasso print PRINTED PRIOR TO 1922 (not a print from AFTER 1922, even for works from before that, as the printer MAY [dubiously] get to retain some copyright on that print) and sell copies of it to fans, well, as long as that's all you ever intend to do with art, you probably shouldn't be worried.

It's probably tough to find a good enough prior-1922 print to copy from, though.

If you're not in the US, but in France, you're just screwed, though.

Correct me if I'm wrong there...
posted by shepd at 1:57 PM on June 28, 2006

Please do explain how there could possibly be "licensing and reproduction issues" involved with an item in the public domain. By definition, this is impossible.

Our museum owns thousands of objects produced before 1923, and if anyone wants to reproduce a photo of any one of them, they have to get our permission. We own the reproduction rights to a painting produced in 1640 just as we own the reproduction rights to a ceremonial object produced in Eighteenth Dynasty Egypt, even when there's no one who owns copyright to the works themselves. (This means you can visit the museum and take a photo of one of our paintings for your own private use, but if you want to put it on your website or publish it in an article, you have to get permission.)

Likewise, there may be no estate of Leonardo Da Vinci who owns the copyright to anything Leonardo produced, but Dan Brown didn't get to reproduce the Mona Lisa on the cover of The Da Vinci Code without getting permission and paying a hefty fee to the Louvre. I'm publishing a book on Magritte right now, and his estate controls the reproduction of all of his images, writings, and letters, whether they were made before 1923 or not. Indeed, there is a whole assortment of rights beyond copyright.

And outside the world of visual art, if you want to see a literary estate flexing its muscles in terms of control and access, look no further than the New Yorker's recent article on Stephen Joyce's stranglehold on James Joyce's published work -- the majority of which was published (wait for it) before 1923.

You may find all this rather appalling (I'm no big fan of a lot of this myself), but it doesn't make it factually untrue.
posted by scody at 2:20 PM on June 28, 2006

scody writes "Our museum owns thousands of objects produced before 1923, and if anyone wants to reproduce a photo of any one of them, they have to get our permission. We own the reproduction rights to a painting produced in 1640 just as we own the reproduction rights to a ceremonial object produced in Eighteenth Dynasty Egypt, even when there's no one who owns copyright to the works themselves. "

This is a side effect of owning an object not a general legal restriction. For example:

1. Your museum sells me an art object
2. I take thousands of photos of the object.
3. I release the photos to the public domain
4. I sell you the object back

The photos I took are still in the public domain and your museum can not remove them from the public domain. Any new photos taken of the object can be controlled by you. I'm not sure what happens to those images once the copyright expires (if that ever happens).
posted by Mitheral at 2:54 PM on June 28, 2006

"Our museum owns thousands of objects produced before 1923, and if anyone wants to reproduce a photo of any one of them, they have to get our permission... you may find all this rather appalling (I'm no big fan of a lot of this myself), but it doesn't make it factually untrue."

It is appalling and I dare say immoral. But it may also be untrue. See Bridgeman vs. Corel Corporation (also here and here, etc. (IANAL but these seem pretty clear-cut.)

No one's taken this issue to the Supreme Court yet, however. The decision was in district court.

My opinion is that when museums enforce such so-called rights on works that are clearly public domain, they have proven themselves unworthy of the public trust and have basically forfeited any claim to serving the public. But I'm a bit of a purist on public domain/fair use issues.
posted by litlnemo at 4:11 PM on June 28, 2006

Oh, and to answer the first question, unless there is something unusual about the situation, why would you need to pay a fee to hang prints? It's not like ASCAP/BMI coming into coffee shops and charging them fees to play the radio publicly. There is no "public performance" licensing fee for a poster as far as I know.

There could be trademark issues, I imagine; if you posted prints of Mickey Mouse all over your business that might be an issue in some circumstances, but prints of paintings?

But like I said above, I'm not a lawyer so perhaps there's some arcane issue here I'm not familiar with.
posted by litlnemo at 4:17 PM on June 28, 2006

This is a side effect of owning an object not a general legal restriction

It's certainly true that a museum's ownership of a particular work doesn't grant the museum (or any owner) the underlying copyright to the work itself. But we do in fact own the copyright to any photo we create of of any object we own. We also own the reproduction rights to any photo that anyone else takes of one of our objects. As the Artists Right Society says: photographs of works of art in the public domain may themselves be copyrighted and will likely require a license for publication, even though the public domain works which are the subject of the photos are no longer protected.

As for your example: well, yes and no. Hypothetically, that could be the case, but in reality museums don't just sell off parts of their collection with the intention of buying them back. The Art Institute of Chicago is never going to deaccession Hopper's Nighthawks at the Diner, wait for it to go back on the market, and then get it back a few years later.

Additionally, the scenario is complicated if you're talking about a object for which an artists copyright still exists. You could do whatever you wanted with the images of an 18th-century painting you owned, but not a Jasper Johns painting. You could allow a publisher to reproduce the photograph of either object for free and without restriction, but that publisher would still have to get copyright clearance from Johns himself for the Johns painting.

on preview: litlnemo, sorry, it drives me nuts in a lot of ways, too. I know people who've decided to give up their research on particular artists because the estates are so horrible to try to work with, which I think is awful. As an amateur Joycean, I'm personally disgusted by what Stephen Joyce is doing with his grandfather's estate.

But I daresay routine licensing of photographic reproductions by museums is not in the same league as what Stephen Joyce is doing (or what certain artists estates do -- I could tell you tales that would make your toes curl, but I really can't disclose certain things publicly). First off, like it or not, but licensing is a revenue source for museums -- museums that often have had their budgets cut, etc. (I don't mean to imply that licensing is a major source of income, however, because it's not -- but it is a source.) Even so, we license photo reproductions of our works for free (or for nominal fees) for educational purposes, for example, and of course we grant permission and supply images for free for reproduction in press reviews.

Interestingly, almost without exception, when we have to pay fees to reproduce photos of artworks in our own publications, we often get them for free or for very small fees from other institutions. In fact, when we get hit hit with astronomical reproduction fees, it is almost always private owners who demand the highest prices. (And in one recent case that we're dealing with right now, it's a particular European government who says the work is a national treasure and has billed us thousands of dollars to for the reproduction rights.) So I do take a little umbrage at the idea that my department is somehow "violating the public trust" when we request $50 to cover the cost of creating and shipping a photo transparency for a publisher to reproduce in a book.
posted by scody at 4:26 PM on June 28, 2006

(scody, costs of creating and shipping a transparency aren't the kind of things I'm referring to. That's pretty legitimate, just as if your museum were to loan my group an artifact for research you would be within your rights to charge for shipping/handling. I'm mostly referring to situations such as having a photograph of a public domain work and the museum insists on a very high fee to reproduce it -- and restricts all photography, not just to "protect the artwork" somehow, but to protect their monopoly on reproduction. Covering legitimate costs is not a problem AFAIC; abuse of the situation is.)
posted by litlnemo at 4:48 PM on June 28, 2006

And, yes, the private estates are the worst at this sort of thing. But museums can be greedy too, though many of them are wonderful to work with.
posted by litlnemo at 4:49 PM on June 28, 2006

Our museum owns thousands of objects produced before 1923, and if anyone wants to reproduce a photo of any one of them, they have to get our permission.

Surely this is because your museum controls access to the works? Presumably, like software click licenses, the museum claims an implied agreement when they let people view the work. You know, "If you view this work you are agreeing not to reproduce...", or something..

It seems very unlikely that it has anything whatsoever to do with copyright law. Maybe I'm missing something..
posted by Chuckles at 4:51 PM on June 28, 2006

scody: I am an attorney who practices, among other things, copyright law. I can assure you that as much as your museum may think it has the right to control the reproduction of photographs of items it owns that are themselves out of copyright, it does not, generally have that right. (This and all of the following analysis assumes that you are in the United States. Your law may vary.)

For photographs taken by the museum, it would hold a copyright and be able to control reproduction. That copyright, however, would be limited to the creative elements of the photograph -- the lighting, angle, and so on. There is a copyright in the new work only because it is an independent derivative work, and like all derivative works, the protection is limited to the creative elements added to the underlying work. A simple front photo of a painting, with nothing else, would probably be held by a court to be unprotectable, since it would be a simple reproduction of the underlying work, which is unprotectable.

Likewise, if I take a photograph of a work that is itself out of copyright, I would own the copyright in that photograph, to the extent it is protectable because of the creative elements I add. But I could not prevent anyone else from publishing a different photograph of the work. And, this is the key point, the museum could not prevent me from publishing mine.

The quote you cite from the Artists Right Society is correct: a photograph of an unprotected work might itself be protectable. (Note the might -- if the photograph added no creative elements, it would not be protectable.) But that copyright is in the author of the photograph; it has nothing to do with the museum. The museum has no rights to photographs taken of its works.

(The museum could, of course, prevent people from taking photos, through entrance limitations and such. But once the photograph exists, the museum has no control.)

(Nothing in this post should be construed as legal advice; your situation could be different, and so you should consult competent counsel.)
posted by raf at 4:56 PM on June 28, 2006

The museum has no rights to photographs taken of its works.

Really? (And I say that not confrontationally but actually out of amazement.) This is precisely the discussion that was going fairly recently between our manager of rights & reproductions and our general counsel, as a situation came up recently where someone visited one of our galleries, took a photo of a painting, then reproduced it as a greeting card with our name on it. It's "being pursued," is all I've been told.
posted by scody at 5:28 PM on June 28, 2006

Yes, really. Though you might be able to sue over the use of the name.
posted by raf at 5:56 PM on June 28, 2006

scody writes "hen reproduced it as a greeting card with our name on it."

I'd bet the museum name is the reason laywers are involved, either because of trademark or defamation.
posted by Mitheral at 6:00 PM on June 28, 2006

No discussion of copyright and works of art is complete without reminding people that in many countries, including France (well, the EU now as a whole), Australia, and many others (but not generally the US), artists have perpetual, inalienable moral rights. These generally concern the absolute right to be identified as the artist or claim authorship and to object to (and stop) derivative works that interfere with the integrity of the work.

That doesn't seem like it would apply related to the original question, but it could.
posted by mikel at 8:26 PM on June 28, 2006

But that copyright is in the author of the photograph; it has nothing to do with the museum. The museum has no rights to photographs taken of its works.

raf, what if the photo (and presumably reproductions of that photo as postcards, posters, etc) is taken under the auspices of the museum, as work for hire or by museum staff? From what you say, it seems to me (IANAL) that the museum does indeed hold copyright to that photograph. (Or is it just too late at night and I don't know what I'm talking about?)
posted by lhauser at 11:16 PM on June 28, 2006

If the museum hired the photographer, then the contract should specify who gets copyright over the work. (But of course they might not be that smart.) The photograph might be a work-for-hire, and then the museum would own it; it might not be. The rules governing works for hire are a little complex.

If the photographer is a normal employee of the museum, and taking these photos is within the scope of that employment, then the museum would own the copyright.

If the photographer is specially hired for this photograph, then (1) the photo has to be commissioned as part of a "collective work", or has to be part of a motion picture or audiovisual work, or has to be part of a compilation; and (2) the contract has to specify it is a work made for hire. Otherwise the photographer would still own the copyright. (See 17 U.S.C. § 101, 201.)
posted by raf at 6:22 AM on June 29, 2006

Note that even if the photograph were specially commissioned and didn't qualify as a work made for hire, the museum and the photographer could still contract for the copyright to be transferred to the museum, or for the museum to have an exclusive license in the photograph. But if it's a work made for hire, then the copyright belongs to the museum from the moment the photo is taken.
posted by raf at 6:32 AM on June 29, 2006

Here is a decent article that addresses the topic in a different context.

This discussion reflects how contentious this area is and the rock solid fact is that there is not a clear "right" answer as the legal case cited in that article (and the many codicils the author adds to that precedent's scope and enforceability) demonstrates. Whether any particular reproduction can be legally publically displayed will depend on dozens of factors.
posted by nanojath at 2:39 PM on June 29, 2006

nanojath, that's one of the articles I linked to in my first response above. :)
posted by litlnemo at 10:47 PM on June 29, 2006

(bows head in shame)
posted by nanojath at 9:16 AM on July 1, 2006