Photographs of public domain paintings: how, if at all, should we protect them?

• Author: Reese, R. Anthony

1. INTRODUCTION II. USING COPYRIGHT AND CHATTEL OWNERSHIP TO CONTROL IMAGES OF PUBLIC DOMAIN PAINTINGS III. WHAT PROTECTION, IF ANY, IS APPROPRIATE FOR ART REPRODUCTION PHOTOS OF PUBLIC DOMAIN PAINTINGS? A. The Need for Incentives B. The Need for Access C. Reconciling the Competing Interests: A Sui Generis Approach IV. INTERNATIONAL AND CONSTITUTIONAL CONSTRAINTS: COULD CONGRESS ADOPT THE SUI GENERIS APPROACH? A. Sui Generis Protection as Copyright Law: International Constraints B. Sui Generis Protection Outside of Copyright: Constitutional Constraints V. CONCLUSION 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 the impediments that granting exclusive rights in them would present to using the underlying public domain work. Given the incentive and access concerns, perhaps art reproduction photographs should receive some circumscribed protection against copying, but not complete copyright protection. A sui generis right in such photos, tailored to the specific needs involved, might best accommodate the competing interests.

   If some type of sui generis regime were desirable, could such a system be enacted? If art reproduction photographs come within Congress's Copyright Clause power, then Congress could likely exercise that power to adopt a sui generis regime. But doing so would likely run afoul of several multilateral and bilateral international copyright obligations that the United States has taken on in the past 20 years. If applicable, international copyright agreements could significantly constrain Congress's ability to protect art reproduction photographs through a sui generis regime that is less generous than ordinary copyright law.

   On the other hand, if art reproduction photographs are not proper subjects for protection under the Copyright Clause, international copyright obligations would likely leave Congress free to grant such photos substantially less protection than it gives copyrightable works. But in that event, Congress would face the question of whether it can use some constitutional power other than the Copyright Clause to enact a law granting exclusive rights in works that do not meet the standard for protection under the Copyright Clause. 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.

   Part II examines how copyright law can combine with ownership of original paintings and transparencies of art reproduction photographs to allow a museum to exert significant control over use of images of public domain paintings, and discusses the current state of copyright law with respect to art reproduction photos of such paintings. Part III considers arguments for and against some grant of exclusive rights in art reproduction photos, and suggests one possible sui generis approach to reconciling those competing arguments. Part IV then shows that international or constitutional constraints might prevent Congress from adopting a limited, sui generis right in art reproduction photographs, potentially limiting Congress's choices either to providing something close to full copyright protection, or no protection all--alternatives that may be equally unattractive options for mediating the incentive and access interests at stake in choosing a system of protection.

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

   Many paintings that hang in museums embody pictorial or graphic works that are in the public domain. (3) Their copyrights have expired, or copyright protection was never obtained for them. Members of the public might want to use these public domain images in many ways. A scholar might want to show them in lectures, or reprint them to accompany a scholarly article or monograph. The owner of a personal website might want to display an image of a favorite painting on her site. An artist might want to incorporate all or part of an image of the painting in a new work of her own. (Andy Warhol, for example, might have used the Mona Lisa, in addition to photos of Marilyn Monroe and Jacqueline Kennedy, in his works.) A publisher might want to include a copy of the painting in a coffee-table book to sell. And a merchandising company might want to put an image of the painting on notecards, umbrellas, mugs, or a whole host of merchandise.

   Consider a similarly situated musical composition. When the musical work enters the public domain, the scholar can play it on the piano during a lecture or print portions of the musical notation to accompany scholarly analysis, the website owner can record it to play every time a user visits her site, a composer can incorporate all or part of the tune into her own new composition, a music publisher can include sheet music (or guitar tablature, or the printed lyrics) in a book of music, and a merchandising company can record the song to use in a greeting card or music box.

   Because the pictorial work embodied in the painting, and the musical composition, are both in the public domain, copyright law would allow all of these people to make all of these uses of the painted image or the song. Indeed, copyright law encourages those uses--one rationale for the public domain is to let anyone use an unprotected work in the hope that doing so will increase the work's availability, decrease its cost, and allow it to serve as the basis for further authorial creation. (4)

   But while copyright law permits and encourages these uses of both the painting and the song, practical realities mean that the public will more likely be able to use the song than the painting. When a musical composition goes into the public domain, a potential user will generally be able to get relatively easy access to the work in order to use it. Copies of the sheet music may be in circulation (perhaps already in the user's possession) or available at a library. Recordings of the song may exist, and capable musicians will be able to listen to the recording and then play the song or transcribe it into musical notation. (5) In other words, copies of the work, suitable for the user's purpose, will generally be readily available. (6)

   The same will not usually be true of a public domain painting in a museum, because a work of fine art such as a painting is generally, by definition, a unique object. (7) The author of a musical work typically makes and distributes (directly or indirectly) numerous copies or phonorecords of her work during its copyright term, and many of those copies and records will remain available after that term expires. But a painter generally produces only one copy of a painting. (8) The museum's original painting will usually be the only original. Anyone who wants to copy the painting will generally need to copy that original, or a copy made from it. (9)

   The practical necessity of copying (directly or indirectly) from the museum's original painting will usually make it difficult to copy (and make further use of) even a public domain painting. Three factors combine to impede copying such public domain artworks: the museum's ownership of the original painting, the museum's claim to copyright in any photographic reproduction it makes of the painting, and the museum's control over access to the negatives, or transparencies, of any such photograph.

   First, the museum's ownership of the original painting may allow it to prevent others from making reproductions directly from the painting. (10) Even though no copyright any longer protects the painting as an artistic work of authorship, the museum owns the personal property-the paint, canvas, etc.-that embodies the work, as well as the real property-the museum building-in which it is exhibited. Anyone who wishes to make any of the uses described above will need access to the painting in order to reproduce it. And the museum, because of its tangible property rights, can deny access to the painting to anyone who wants to copy it. With respect to photographic reproductions, most major museums do in fact restrict...