The Copyrightability of Cultural Heritage: A Case Study of the Legal Battle over the Nefertiti Bust

• Author: Emma K. Blumenthal
• Pages: 36-64

Published in Landslide, Volume 14, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or

any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written

consent of the American Bar Association.

36

Around the world, entities ranging from the Russian

government to Google to private museums are map-

ping ancient works of art using three-dimensional

(3D) scanning technology. Prompted by recent technologi-

cal advances, it is now possible, and increasingly common, to

create 3D scans of cultural heritage, which includes an array

of works from individual sculptures to entire ancient cities.1

These 3D scans are created ostensibly with the objective of

promoting historical preservation and allowing for public

access to cultural heritage, which is under threat by factors

such as climate change and conict. However, the legal status

of such 3D scans is uncertain. While the antiquities them-

selves are in the public domain, meaning they are not subject

to copyright protection and may be copied or incorporated

into new works, it is unclear as a matter of law whether the

entity that creates the 3D scan has a valid claim to copyright

protection in the scan.

This legal uncertainty poses potential risks concerning

public access to and use of such 3D scans and may permit

private companies, museums, and even governments to effec-

tively extend legal control over the image of an antiquity,

even after it has deteriorated or been destroyed altogether.

In some instances, the entity creating the scan possesses the

antiquity, such as in the case of a museum scanning an object

in its collection, while in other cases the scan is taken by a

third-party entity that does not control the antiquity. This

is the situation with 3D scans taken by Google of the Moai

sculptures on Easter Island, which are at risk of destruction

due to rising sea levels, and by the Russian government of

the ancient city of Palmyra, Syria, which suffered extensive

Image: GettyImages

The

Copyrightability of

Cultural Heritage

A CASE STUDY OF THE LEGAL BATTLE

OVER THE NEFERTITI BUST

By Emma K. Blumenthal

Published in Landslide, Volume 14, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or

any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written

consent of the American Bar Association.

36

Published in Landslide, Volume 14, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or

any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written

consent of the American Bar Association.

37

Wenman began the arduous task of using Germany’s freedom

of information laws to force the museum to release its scan of

the Nefertiti Bust. Because of its status as a state museum, the

museum referred the inquiry to the Prussian Cultural Heritage

Foundation, a German state agency. Wenman was in a unique

position to seek the scan using a legal mechanism given the

museum’s standing as a state-run institution. As a consequence,

the 3D scan was considered federal information subject to

Germany’s freedom of information laws, meaning that the Ger-

man state agency had a legal obligation to release the 3D scan.

While it is common in Europe for museums to be state-owned,

that is not always the case, particularly in the United States

where the majority of cultural institutions are private.10

The German agency conrmed the existence of a 3D scan

of the Nefertiti Bust but stated that it could not provide the

3D scan because that action could threaten the museum’s

income from sales of Nefertiti Bust replicas. According to

Wenman, the agency “was treating its scan of Nefertiti like

a state secret.”11 Following a second freedom of information

request on the question of revenues derived from the Nefer-

titi Bust, the agency informed Wenman that it made less

than 5,000 euros related to products derived from the scan.12

In 2019, after continued efforts spanning three years, the

museum gave Wenman a USB stick containing the 3D scan

without any public acknowledgment. That moment marked

the end of Wenman’s journey to obtain the ofcial 3D scan,

which is the subject of the analysis in the following sections,

and the start of a new tangled copyright question.

The Potential Privatization of a Public Domain

Object

There is no doubt that the Nefertiti Bust itself is not protected

under copyright law—it was created long before copyright

law existed, and, even under the world’s longest copyright

protection period, the Nefertiti Bust’s term of protection

would have expired thousands of years ago.13 The work itself

must be in the public domain, meaning that it is not subject

to any copyright restrictions. However, as Wenman inspected

the Nefertiti Bust 3D scan, he found an engraving on the bot-

tom of the scanned object.14 The inscription was a unique

type of intellectual property license that prohibits the use of

the scan for commercial purposes and requires attribution

of the creators of the scan. But what was a copyright license

doing on the 3D scan of a public domain work, and could

such a license be enforced?

There are various ways in which a work may come to be

in the public domain, including when a work does not con-

tain copyrightable subject matter, when a copyright owner

chooses to release a work without copyright restrictions,

or when a term of copyright ownership has expired. In the

United States, a copyright owner of a work registered with

the U.S. Copyright Ofce has a number of exclusive rights,

including the rights to reproduce a work, create derivative

works, and distribute copies of the work, among others.15

Emma K. Blumenthal serves as a law fellow with the Ofce

of the General Counsel at the University of Arizona. She can be

reached at emma.k.blumenthal@gmail.com.

damage at the hand of the Islamic State.2 There may be a day

when such cultural heritage no longer exists, and the question

becomes whether the entity that created the 3D scan owns the

sole remaining image of the work.

The issue of the copyright status of 3D scans emerged in

the context of a dispute over the 3D scan of the Bust of Nefer-

titi (Nefertiti Bust), but it has not received examination in

legal literature. In the next sections, this article proceeds by

discussing the Nefertiti Bust dispute and intellectual prop-

erty implications, analyzing the legal status of 3D scans of

antiquities under existing United States copyright law, and

examining new European Union guidance that addresses this

issue. This article argues that, under United States law, 3D

scans of cultural heritage do not contain sufcient original

authorship based on analogous precedent and should be con-

sidered to be in the public domain.

The Procurement of the Nefertiti Bust 3D Scan

The Nefertiti Bust controversy demonstrates how 3D imaging

technology is creating new legal questions relating to ancient

artifacts that will help to shape a new era of arts preservation

and restitution. Since 1913, the 3,500-year-old Nefertiti Bust,

one of the most famous objects from Ancient Egypt, has

resided in the Neues Museum in Berlin, Germany. The orig-

inal statue has remained in the museum despite pleas from

Egypt for its return.3 In more recent years, those pleas turned

to requests for the museum to release a 3D scan of the sculp-

ture so that cultural institutions and individuals around the

world would be able to freely replicate and use the work. Fol-

lowing a multiyear international legal and ethical battle, the

museum eventually released the 3D scan of the Nefertiti Bust

in November 2019.4

Before the museum’s release of the 3D scan in Novem-

ber 2019, it was common knowledge that the museum had

the scan in its possession, presumably for conservation and

research purposes, but it was not accessible to the public.5

The museum also prohibited visitors from taking photo-

graphs or videos of the Nefertiti Bust, essentially creating a

monopoly on the structure, shape, and look of the sculpture.6

As a reaction, in 2016, two German artists, Nora Al-Badri

and Jan Nikolai Nelles, claimed that they had taken a high-

resolution 3D scan of the Nefertiti Bust by surreptitiously

circling the sculpture using a mobile device. Months later,

the artists released the scan to the public. At rst, the news

coverage was bemused and impressed, but soon the artists’

claims came under scrutiny.7 Experts in the 3D scanning eld

claimed that such high-quality images could not have come

from a mobile device and could not be the product of the two

artists’ alleged scan of the Nefertiti Bust.8 The artists nei-

ther conrmed nor denied the source of the 3D scan, stating:

“Maybe it was a server hack, a copy scan, an inside job, the

cleaner, a hoax, but who cares, rst of all it is an art piece.”9

The museum neither released its scan nor conrmed a rela-

tionship between Al-Badri and Nelles’s scan and its own. The

story only became more convoluted from there.

Cosmo Wenman, an artist and 3D scanning specialist, was

one of the people to accuse Al-Badri and Nelles of falsifying

their story of the Nefertiti Bust 3D scan. At that same time,

September/October 2021 n LANDSLIDE 37