Ip and Art: an International Perspective

• Jurisdiction: European Union
• Publication year: 2021
• Citation: Vol. 46 No. 2

IP and Art: An International Perspective

Cristina Manasse

Manasse Studio Legale, Milan

James C. Roberts III

Global Capital Law Group PC

THE NEW EU COPYRIGHT DIRECTIVE AND CULTURAL INSTITUTIONS—SHOULD IMAGES OF PUBLIC DOMAIN ARTWORKS ALSO BE IN THE PUBLIC DOMAIN?

Introduction

IP lawyers probably realize that da Vinci's Mona Lisa and Degas' The Dancing Class are in the public domain, i.e., they enjoy no copyright protection. Da Vinci's opus has no such protection because he painted it centuries before copyright was "invented," and Degas because the protection period expired long ago. So why aren't they in widespread use? Why can't your Parisian client copy that framed print that is an accurate reproduction of the painting and slap it on coffee mugs, stationery and other tchotchkes to sell in competition with the museum bookshop? After all, the artworks are in the public domain.

Commercialization is (rightly or wrongly) controlled by those who own, or have "custody" of, those works, e.g., museums and collectors.¹ In principle, they prevent others from commercializing that framed print because they claim a copyright in that print or because their role as a custodian gives them the right to control further use. If the image on your client's coffee mugs came from using that framed print, then the museum could argue infringement on its rights in the reproduction itself—and not the centuries-old work that itself is in the public domain.

In the European Union there are at least two forces that are changing that situation: the implementation of the European Union Copyright Directive by the member states and "open access" initiatives among cultural institutions around the world.² Your Parisian client might still be able to launch that line of coffee mugs with an image of [Rodin's The Thinker] on them.

At first blush, the shift to open access looks like it substantially lowers the need for legal paperwork. But like many topics after the blush recedes, this might not be true.

The EU Copyright Directive

A significant portion of the Copyright Directive addresses the works held by "cultural heritage" institutions.³ This is in large part due to the simple fact that these institutions hold almost limitless "resources" at the core of cultural heritage. Even though most such assets are in fact in the public domain due to their age, members of the public cannot exercise the rights (or the absence of others' rights) in such artworks. To proponents of "open access" the denial of such access runs counter to the very concept of "public domain."

As set forth in Recital 53 of the Copyright Directive, the circulation of reproductions of artworks already in the public domain favors access to culture and its promotion.

The expiry of the term of protection of a work entails the entry of that work into the public domain and the expiry of the rights that Union copyright law provides in relation to that work. In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works.⁴

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It's not as if members of the public can "borrow" these public domain artworks from these prestigious museums. Their only access is to look at them in-person, online, in books and other publications or by purchasing reproductions from these institutions.

Article 14 of the Copyright Directive goes to the heart of it: put simply, if an artwork is in the public domain, then what might be called "straightforward" images of such works should also be in the public domain.

Works of visual art in the public domain. Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.⁵

Article 14, if implemented by a member state, does not strip museums of IP rights they can commercialize, as the final sentence of Recital 53 makes clear: "[The principle of access to cultural heritage...] should not prevent cultural heritage institutions from selling reproductions, such as postcards."⁶

Thus, in the name of access to cultural heritage, the Copyright Directive requires sharing with the rest of society. This part of the Copyright Directive emphasizes the word public in the legal term, "public domain." Put another way, if an artwork is already in the public domain, why should its owner be able to remove means of its use—i.e., a copyrighted image of such work—by others in the public? Thus, the digitized image (2D or 3D) could be freely used, for any purpose, as it would no longer be subject to the limits of copyright or related rights.⁷ In some countries, existing laws will have to be changed, among them, the so called "dominical ownership" concept, for which the custodian of the artwork has the right to decide how to exploit it and to apply limits to reproductions.⁸

The Devilish Details

Distilled down: "faithful" reproductions would have no copyright protection, but reproductions that are "original" would be protected because they are the artist's intellectual creation. Taking a bit of an editorial license below with Article 14, this is exactly what it states (emphasis added):

[...] any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.

Creativity and Originality as Legal Terms

Embedded in the language of Recital 53 and Article 14 is the ongoing struggle as to the basis of copyright protection...