Photographs of Public Domain Paintings: How, If at All, Should We Protect Them?

Summary

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An original painting that hangs in an art museum is accessible only to those who can visit the museum. A photograph of the painting that reproduces it as faithfully as possible can make the painting's image available to a much wider audience. Such art reproduction photographs can raise a number of copyright issues. In light of this controversy over copyright protection, and the practical hurdles to reproducing public domain paintings, it is worth considering anew the question of what protection, if any, should be granted to art reproduction photographs of public domain paintings. Existing law remains quite unclear as to how much the Copyright Clause's limitations on Congress's power also restrict its power to enact legislation under other grants of authority. But constitutional constraints, like international ones, might perhaps preclude the adoption of a sui generis regime for art reproduction photographs.

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Extract

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Photographs of Public Domain Paintings: How, If at All, Should We Protect Them?

I. INTRODUCTION ...................................................................................................... 1033

II. USING COPYRIGHT AND CHATTEL OWNERSHIP TO CONTROL IMAGES OF PUBLIC DOMAIN PAINTINGS .................................................................................. 1035

III. WHAT PROTECTION, IF ANY, IS APPROPRIATE FOR ART REPRODUCTION PHOTOS OF PUBLIC DOMAIN PAINTINGS? .............................................................. 1041

A. The Need for Incentives .................................................................................... 1041

B. The Need for Access ......................................................................................... 1043

C. Reconciling the Competing Interests: A Sui Generis Approach ....................... 1047

IV. INTERNATIONAL AND CONSTITUTIONAL CONSTRAINTS: COULD CONGRESS ADOPT THE SUI GENERIS APPROACH? ................................................................... 1050

A. Sui Generis Protection as Copyright Law: International Constraints ............. 1050

B. Sui Generis Protection Outside of Copyright: Constitutional Constraints ....... 1054

V. CONCLUSION ......................................................................................................... 1058

I. INTRODUCTION

An original painting that hangs in an art museum is accessible only to those who can visit the museum. A photograph of the painting that reproduces it as faithfully as possible can make the painting's image available to a much wider audience. Such art reproduction photographs can raise a number of copyright issues. Taking a photograph of a painting constitutes reproducing the painting, an act generally reserved to the owner of the painting's copyright (which in many cases is not the museum that displays the canvas). If the painting is in the public domain, though, then a photographer needs no copyright permission to photograph it. In that event, the main copyright issue is whether the photograph of the public domain painting is itself entitled to copyright protection.1

A decade ago, a landmark federal district court decision answered that question in the negative.2 That decision, though, has been subject to some resistance from museums and art reproduction photographers. And because museums, even without any copyright protection, control access to the paintings themselves, as well as to the high-quality reproducible transparencies of any of the museum's own photographs of its paintings, the court's ruling does not necessarily mean that making, or getting access to, a usable quality photograph of a public domain painting is significantly easier or cheaper today.

In light of this controversy over copyright protection, and the practical hurdles to reproducing public domain paintings, it is worth considering anew the question of what protection, if any, should be granted to art reproduction photographs of public domain paintings. Such consideration involves, at the least, weighing the possible need for incentives to invest in producing such photographs, as well as ...

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