Absurd licensing terms imposed on public domain works by libraries and museums

Dee sez, "Keneth Cerws' published studies take copyfight to libraries and museums where restrictive - often absurd - copyright claims and licensing terms are forced on those requesting images of art works and scans of books and documents where the original work long ago entered the public domain, often decades or centuries ago. This raises relevent questions about fair use, academic and research use and how we treat copyright for new images and renderings, often digital images, of old works that many consider vital pieces our common human history, heritage and cultural commons."

Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article explores the extent to which museums have strained the limits of copyright claims and indeed have restructured concepts of ownership and control in ways that curtail the availability and use of art images far beyond anything that may be grounded in the law. This article examines the relevant copyright law applicable to the making and use of reproductions of art images, and it identifies the challenging pressures that museums face as they strive to make policies in the context of law but that also serve the multiple competing interests coming to bear on officials and decision makers inside museums. The article analyzes selected policies from major museums and provides an original construct of forms of “overreaching” that often appear in written standards offered by museums for the use of images. The analysis of policies also demonstrates that museums have choices in the shaping of institutional policies, and that breaking away from familiar policy terms can sometimes better serve institutional and public interests.

Copyright, Museums, and Licensing of Art Images (Thanks, Dee!)


  1. After   Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999),, I’d argue that the law is pretty clear at least in the U.S. Even though that not a Supreme Court case, the logic follows Feist v. Rural Telephone.  There certainly isn’t much in the way of case law on this topic so it’s persuasive authority.

    1. Thanks, I like reading about court cases, especially when Patry makes an appearance. But now I am curious about photographs of works that are still copyrighted.

    2. Yes! While both Feist and Bridgeman are great landmark decisions in the copyfight – in the right direction, in my opinion – neither prevent restrictive “overreaching” or abusive *licensing* or contract terms for images, facsimiles and reproductions produced and controlled by the institution or person holding (owning?) the work. (Side issue and complete elite blasphemy: Should anyone, any institution or any nation “own” art over say 500 or 1000 years old? Maybe in addition to time limited copyright, we have time limited rights of ownership? Discuss….)

      In the U.S. anyway, two parties can enter into any contract to which they both agree and it can be legally binding, if absurd; often, even if it severely disadvantages one party.

      While a court may nullify a contract because of fraud, evidence that one party did not act in good faith or because the contract is abusive or otherwise unenforceable, illegal or unconscionable; the presumption is that both parties act in good faith and are bound by the agreement – or license – if you will.

      The burden then falls on the party who wishes relief to bring suit and prove unfair dealing on the part of the other party to the contract. While most institutions have ready access to legal counsel, many people and organizations on the other end of these agreements do not, nor do they have the financial and time resources for what may be an expensive and protracted legal battle. Barring a pro bono arrangement for competent legal representation and a real relish for the copyfight, they’ll just have to “put up or shut up.”

      The other choice is not to deal at all. But, where access to a unique artifact is exclusive, there is often no other choice.

      In this case, a researcher, student, educator, lawmaker, journalist, blogger, hobbyist, critic, curmudgeon, deadbeat or curious citizen may ask a museum or library for a digital facsimile of a rare work in the institution’s collection. These institutions are often either public, non-profit and/or they receive substantial funding and other support, sponsorship, contributions, assistance, etc. from public coffers, NGO’s, non-profits and public institutions.

      Crews’ work highlights the alarming preponderance and clear trend to treat these reproductions (especially digital files that are easily copied and shared, as well they should be – again IMHO) as if they were the rare specimen itself requiring safeguarding from harsh environments (like the internet!) and broad access or a new work entitled to protection; and, whatever the rational, enforced by pages of dense legalese restricting how the copy or image may be used, shared, published and accessed.

      (What will they do when people start 3-D printing out sculpture and other plastic arts objects?!)

      It’s also true that quite often these same institutions are only passing along the sharp end of the contract stick in front of which they themselves are bound by contracts or licenses from artists, or more often their estates or the collectors or other owners of the original work:

      Says Ms. Collector or Mr. Curator, “I’ll lend you my rare, small, never-before-publicly-shown collection of late Gauguin sketches for your post-impressionist show. But you must agree to charge high entrance fees to the exhibition hall, allow no public photography and no reproductions or prints unless they too are licensed (coffee mugs and tee-shirts!) and I or my museum are paid our cut. And you will certainly not allow any images to be used in any way that is anything but flattering to Gauguin, me or our instutition….”

      …Even when the original work has long been in the global public domain! Look at the Gozillions from “officially licensed” tours and Tutankhamun tchotchkes (oh, and their “Don’t take pictures!” curse…) and stratospheric prices for Rembrandt’s peasant prints on artisan organic cotton canvas totes (oh, the humanity!).

      A real answer, a way forward, would be policy reform led by prominent institutions, scholars, patrons and collectors. And if that isn’t forthcoming, reform public demand and action leading to reform by legislative fiat.

      To be sure, I do not begrudge reasonable entrance fees and even merchandizing or the polite but earnest request for open ended pay-what-you-can supportive contributions from those who use these institutions’ resources and collections, especially where it’s required to support continued access, education and the protection and maintenance of culture, history, art, science and research.

      Ah, but when those funds and resources are used to overreach even our existing copyright mess?!!! Or those institutions lobby for special IP protections for historic and artistic works and their images?!!!

      It seems insanity to me to hold our culture, our history, our heritage hostage to abusive licensing that long and short term only really hurts those on all sides from today’s artists and patrons, to estate rights holders, museums, libraries, scholars, students, children, researchers, bloggers, digital hoarders, and journalists right up to the pinnacles of academia, public and private collections, political institutions and the denizens of the lairs and whited sepulchers haunted by sacred “content’s” new barons.

      Will we wait for so much of our art, history, culture (not to mention science, innovation and all their sisters) to become lost, irrelevant and forgotten (and de-funded, the ultimate boycott!) because we allowed both rights holders and curators to lock us away from and destroy with neglect our heritage?

      Really, when was the last time you saw or heard anyone under 30 (and in my circle of family and friends it’s more like 50) pine for either a physical music CD or an in-person visit to a museum or library collection? They exist, but are becoming more and more rare.

      One of my cousins and his wife, both professionals in their 30’s and doing very well financially, just told his parents they would rather not go to the Tutankhamun exhibit in Seattle this week because they don’t want to support that model of commercializing what should be our common heritage, “and anyway, we’ve seen all that stuff online already. We can see it any time we want.” Well, not if these museums get their way!

  2. While compiling a wikipedia article on a local theatre, I did a lot of research at the Edmonton City Archives and Alberta Provincial Archives. The theatre was opened in the early 1900s, and there were several images in the archives that had passed into the public domain.

    When I asked whether I could use these images, I was told I would have to pay a reproduction fee and a licensing fee, that the image would be watermarked, and that I would have to attribute the image to the archives (not the author) or risk liability.

    I asked them who owned the images and they told me they belonged to the archives. I asked whether or not they were in the public domain and they told me technically they were, but they would not reproduce the images without their fee.

    I came away from the experience believing the main goal of the archives (at least in my city and province) is to preserve the uniqueness of their collection by controlling access to that collection. The archivists were not interested in increasing access to their public domain documents.

  3. This points to an interesting problem: how do you recover the costs to create and maintain archives and provide access to them? How do we keep our museums and libraries in business?

    They can charge for access – but only the first time. After that it’s back in the ecosystem of digital copies.

    Of course the socialist in me believes that society at large should support the maintenance of our cultural heritage and that access should be provided freely.

    1. It’s not about price (at least not with art museums). It’s mostly about the ARS, Artists Rights Society. Most museums would love to distribute their images more widely, but they face huge liability because many living artists (and many more artist’s estates) would sue the crap out of them because the artist still somehow owns the rights to the original work and all reproductions thereof. Even worse, some artists like Clifford Styll put these ridiculous clauses in their wills that limit to the point of absurdity how their work can be displayed or promoted, and again, those clauses are enforceable because of truly absurd copyright terms granted to artists. 
      Many art museums talk constantly about putting their collections databases online, but the biggest hurdle for them is always artist’s copyright. There aren’t many art museums left that still think hoarding all this stuff is a good idea. Artists are very often their own worst enemies.

      1. Thanks for the insightful response. Very cool.

        So this is just a symptom of our dysfunctional copyright system, not funding-hungry archivists.

        A tiny minority of old books survive in archives and print today, many of them having school curricula to thank for it (while the others, perhaps, have copyright to curse). With the democratization of content production, there is ever more to archive – of which only a small portion will be accessed.

        I’m curious how the business model works. Scanning, storing, and distributing data costs money. How can this be sustained?

        1. I can’t speak from experience to archives. I can only speak about museums, which are supported through a combination of admission charges, public grant funding, corporate sponsorships and private donors. No matter what we do with our collections, those sources of funding aren’t going away (our biggest worry is the economy, frankly).

          If we have any work that is public domain or somehow, miraculously, actually owned (full rights owned) by us we throw it out there in as many places as we can. There is a labor problem attached to that process, though. We only have so many hours in the day and our budgets are not cushy and full of wiggle room and our collections databases are very often nightmares of outdated software and mis-coded entries (which is slowly changing in the larger institutions, but again, it’s a labor problem so it happens in between other projects that generate funding or it gets crowd-sourced like at the Tate’s website).

          Libraries and archives are all over the map, as far as funding goes. Some are privately supported by institutions that have their own goals. Some are publicly funded, but very poorly. Some are scraping together as many small sources of funding as they can from many different places, and it’s hard to define their core mission when it seems like their core mission is just to survive. Libraries and archives are hurting these days.

      2. Excellent point. I work on digitizing collection materials at an art museum where much of our collection is early-mid 20th century in origin making it pretty tricky to determine rights status – add to that an eclectic and sometimes poorly documented international origin and you have a dense and thorny thicket of copyright fun on your hands. The leadership of this museum is firmly behind freeing public domain works – we’ve already dropped all licensing fees for academic and non-profit publication. Our biggest problem is accurately making that determination. The amount of research required and legal complexities to comprehend for each copyright status determination is truly staggering.

        1. That’s exactly why reform is needed!  It’s much like the case of sampling and remixing for music and video (or any copyright protected work, for that matter):  The thorny (and costly!) legal overhead and possible negotiations is a barrier to entry or openess or sharing and thus to further development, innovation, creation …  If you’re part of a licensing consortium or a rich private university, say, (or, say, a record company in the music industry), there is probably already a licensing agreement in place, all worked out by lawyers and other legal eagles.  But, if you’re a mere citizen, student, researcher, or any number of independent people or groups who could benefit personally and likely pass on benefit to society, academia, industry from access and use;  you’re probably out of luck.  It’s censorship and stifiling competition by false barriers to entry or access. And so is the lack of funding for those who, in many cases, want to provide access. It seems that archives and collcetions are under attack by neglect around the globe and without internet enabled open access, too few care or notice when decades or centuries of our history are sold off (Canada, I’m looking at you!), lost or obliterated whether thru neglect, restricted access willful destruction.

  4. I paid the Bancroft Library for two images for the cover of my novel, “Bordello Politique” (seen earlier this year on BoingBoing).

    The images came from negatives in the SF Examiner picture/negatives file. I paid for the conversion, and expected to pay hundreds of dollars and a royalty for each unit sold. The archivist charged me twenty bucks a pic. When I asked about their policy, she chuckled and said, “self-publishing is not a commercial venture.”

  5. My work, the National Gallery of Art, just liberalized our approach to this matter quite a bit. We still charge fees when we have to, you know, do some work to create a good image, but once the work is done on an image we presume to be in the public domain, we give it away on our NGA Images website. We’ve still got a little way to go, but we are trying hard to do the right thing.

    And, I suppose I’d be remiss not to encourage Boing Boing readers to visit NGA Images and download away, and then to do whatever you wish with the images. Go for it.

    1. Fantastic news!  As a former U.S. Fed, we were told frequently that by law anything produced by the U.S. government, meaning by government employees while “on the clock” and/or with government funds or equipment , is automatically in the public domain.  Sadly, some institutions have yet to see the light:  I’m looking at you NASA and Smithsonian!  And like Sam writes above, many archivists and curators will effectively bar access by feet dragging and red tape knitting until the maddening level of frustration isn’t worth it.  I’m already loving NGA Images!  (to self:  it will all still be there.  No need to turn digital hoarder.  But better point archive.org and some other net way-back engines over there just in case!)

  6. I had read some years ago (on BoingBoing???) of some announcement that the leading British museums were essentially giving up on enforcing copyright of images of public domain artworks.

    But now I see numerous restrictions on their websites, some which defy logic (e.g., no “alteration” of any image; they’ve obviously never had to color correct a digital image before, or seen “L.H.O.O.Q.”):  

    British Museum: http://www.britishmuseum.org/about_this_site/terms_of_use/free_image_service.aspx

    Tate Modern:  http://www.tate.org.uk/about/who-we-are/policies-and-procedures/website-terms-use/copyright-and-permissions

    Am I remembering that announcement incorrectly?

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