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At the stroke of midnight, December 31, 1977, valuable collections vanished suddenly and probably forever from museums all over the United States. The dollar value of the loss has never, to my knowledge, been assessed. Yet, it certainly ranked in the many millions.
Surprisingly, museum officials at first took little notice of their loss. They filed no police reports, made no insurance claims. In the days and weeks that followed, there were no mass protests against the vast conspiracy, reaching to the very highest levels of the U.S. government, responsible for this uncompensated transfer of huge amounts of museum property, mostly to individuals then unknown. After the New Year’s holiday, America’s museums opened for business as usual, as if nothing had happened at all.
It fact, it took years for museums to grasp what exactly had happened to them that night. Museum officials were accustomed to looking after physical property—art works and artifacts—however, the loss they sustained was to their intellectual property—the rights to reproduce and profit from works in their collections. Congress’s revisions to the 1909 U.S. Copyright Act, which went into effect on January 1, 1978, reversed a long-standing assumption of U.S. law. Under the old law, when a work of art was sold, the right to reproduce that work went with its new owner, unless the artist specifically reserved copyright. Under the new law—-which conformed to conventions long established outside the United States—-that copyright was restored to the artist, and the artist’s heirs, unless the artist specifically transferred it along with the work.
What this meant in practice was that the reproduction rights that museums had, all along, assumed they owned on works in their collections actually belonged to—well, who exactly? The artist? The artist’s widow? Some previous owner? In the absence of clear documentation and legal precedent, no one was exactly sure.
If someone claiming to represent an artist’s estate contacted the museum, demanding royalties for a set of museum postcards of his work, how could you be sure the claim was valid? And what about the rights to works in museum collections for which copyright had expired or never been registered? Did the museums—-as they traditionally assumed—-own those? If they didn’t, who did? Did making a photograph of an artwork change its copyright status? What could museums do to avoid, on the one hand, losing more rights and compensation and, on the other hand, being hauled into court by irate artists’ attorneys?
These panicky questions started out as murmurs in museum registrar, publication, and photography offices and percolated upwards. The confusion came at a critical time. In the early 1980s, the Reagan Era budget cutters decided that American culture could do without public subsidies. Funds available to museums from the National Endowment for the Arts, the National Science Foundation, and other government agencies began to shrink. Desperate for ways to make up for these losses, museums increasingly turned to business operations that turned reproductions to cash via posters, postcards, t-shirts, and other museum products.
Meanwhile, back in the real world, vast changes in technology via computers, digitized imagery, and the Internet not only made intellectual property much more important and valuable, but also made it far easier to circumvent copyright laws. (CAA.Reviews readers may also want to check another review on the Art Museum Image Consortium Library.) Realizing the effects of legislation on their bottom lines, the massively wealthy software and entertainment industries began to dominate Washington lobbying efforts on intellectual property issues. Accelerating change in both U.S. and international intellectual property law—which lately has had works moving in and out of the public domain like Alice through the looking glass—made it seem impossible for most museums to stay up-to-date and free of potential legal nightmares.
Somewhat belatedly, in the mid-1990s, the American Association of Museums stepped into the intellectual property arena, organizing meetings and committees to look into issues relating to museum and copyright. Late last year, the association published its first Museum Guide to Copyright and Trademark, designed, according to its authors, “to help museums develop a clearer understanding of the importance of intellectual property—- the intellectual property owned by museums and the intellectual property of others that museums hold in trust” (1).
Written by practicing attorneys with considerable experience in museum-related intellectual property issues, the 226-page guide walks museum people through the thorn-filled legal thickets that threaten to enclose their day-to-day work. Although it does not claim to offer legal advice, the book is nothing if not thorough. Its meticulous case studies cover issues from how an artist can use the Visual Artists Rights Act (VARA) to sue a museum for “trivializing” his work on tote bags and umbrellas, to how to react to a “cease and desist” order from a trademark attorney. The World Wide Web, licensing issues, and the multitudinous grandfather clauses in current copyright statutes are all covered in detail. Turn to page 33, for example, for a handy chart to sort out bewildering changes in the lengths of copyright terms under various circumstances. The book is impressively up-to-date itself. On page 16, you will find a discussion of The Bridgeman Art Library, Ltd. V. Corel Corporation, a critical visual copyright decision handed down in 1999, just as the Guide went to press.
The book’s leading virtues, though, are also its chief flaws. Its authors go out of their way to give fair consideration to the rights and opinions of artists and others whose interests may conflict with those of its museums. But AAM’s guide is really written from the point of view of the museum professional. Others will find much useful material in the volume, but it will take some digging and extrapolation.
Some museum outsiders—art historians at colleges and universities, for example—will not find reassuring answers to their many questions and concerns about museum copyright practices. For many such people—and for other scholars, librarians, and intellectuals as well—-issues of fair use, public domain, and what you might call “museum morality” are crucial. If museums join with industry in dividing the cultural commons into lots of private intellectual property, these same people claim, intellectual freedom and progress will be critically wounded.
The Guide considers these broader questions, but fairly parochially. On the issue of public domain, it comments, “As owners and producers of protected works, museums generally favor longer periods of [copyright] protection [before a work enters the public domain]. As users of public domain materials, museums prefer shorter periods of protection” (36). On the issue of fair use, an ideological sacred cow for many academics and intellectuals, the Guide is largely legalistic, noting, “The U.S. Copyright Office’s informational circular on fair use acknowledges that the distinction between fair use and infringement is unclear and not easily defined” and avoids the question of where museums should stand on the issue morally (10).
Intellectual property issues have had the odd effect of uniting formerly unrelated business interests. Software and media companies now consistently lobby for broader definitions and longer copyright terms, better international enforcement, and ironclad laws against breaking copy protection systems.
In contrast, the nonprofit, intellectual, and scholarly communities are increasingly divided on such issues as fair use and the public domain, unable to come up with common positions they all can support. Each individual and group within those communities is inclined to feel capitalist thugs are unfairly exploiting their intellectual property while they are simultaneously forced to pay outrageous use fees for things that should properly belong to everyone.
Museums increasingly find themselves at the center of such controversies. Art historians are outraged that museums charge them fees for scholarly uses. Publishers clash with museums and artists’ rights organizations about the scope of their control over rights. Museum directors struggle to stay in the black while being asked to give away the store as far as their intellectual property is concerned.
It is hard to fault the AAM too much for sticking to their museum-oriented mission with this guide. Museum professionals are likely to hail its thorough treatment as a godsend, even if it usually does a better job of pointing out the complexity of the problems than presenting simple solutions. But a guide that treated museum concerns in the context of these broader issues of intellectual property—with an eye to finding the common ground we all can stand on—would be an even greater wonder to behold.
Peter L. Walsh
Chairman, Commonwealth of Massachusetts Art Commission
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