Disclaimer: This is not legal advice, (though I did have the text checked by my lawyers).
In the ‘Blossoms’ post below I had wanted to add my favorite example, Primavera by Adolfo Tommasi in the Galleria di Arte Moderna in Florence. Unfortunately I couldn’t find a decent image online. The Italian Culture website has a small, terrible image of the painting with watermarks all over it from a private company which controls the image databases of Italian museums. It begs the question: Who is this for? The tagline on the government website is ‘a patrimony to explore’, and in the charter of most museums there is something about their job being to disseminate the works to the public. But the online images are often small, cropped, and covered with watermarks, rendering them all but useless except as ads for the database company. For important paintings, a quick Google-search produces high-resolution images in abundance, but for lesser-know paintings there is no way to get an image from an Italian museum online. I contacted the archive company representing the museum’s collection, Scala Archives, but they want €120 for a 600 pixel, 72dpi blog-ready digital image.
It got me wondering though: Who owns this image?
Adolfo Tommasi died in 1933, so the painting is in the public domain. Yet in this case, and in museum collections worldwide, archiving services such as Scala have photographed the work, and now claim a new copyright exists on the photograph of the painting.
The question is: Can they do that? It looks like they can not, at least not in America.
In 1999, a landmark case was brought against Corel Corporation by the Bridgeman Library, an archiving service similar to Scala. Corel had used a number of digital images of paintings from the Bridgeman archives and was selling them cheap. Bridgeman claimed they owned the copyright of the photographs of the paintings and sued Corel. The judge ruled in favor of Corel, and stated that photographing paintings constitutes ‘slavish reproduction’, and lacks any “originality” beyond the “sweat of the brow” of the photographer (the U.S. Supreme Court had already ruled that ‘sweat of the brow’ is not enough for a copyright in 1991). These paintings, like the Primavera, are in the public domain. A ‘slavish reproduction’ of a public domain image is still an image in the public domain. Bridgeman Library tried to argue that there are many ways to photograph a painting and that constitutes some sort of creativity on the part of the photographers. The beauty here is that the better the photographer, the more slavish the reproduction. The job of a good art-photographer is to accurately show the painter’s work, not be creative.
The lawyers for the American Museum Association knew this would be the outcome and asked Bridgeman to drop the suit (read their very interesting take on it here). Museums, and their subcontracted image-library companies, have been selling public domain images for years for money and didn’t want a bad case on the books. There appears to be a sort of agreement in the publishing world where to get a high quality image one pays the museums, and the museums in turn pretend they own the rights. In fact the museums can only restrict access to high quality reproductions. Both the museums and archiving services use contract law, rather than copyright law, to protect their control of public domain images. To get a high quality image from them, you must sign a licensing agreement which legally binds you to their restrictions and fees. They even claim that even just by visiting their museum or website you are agreeing to their terms, though this is legally dubious. Furthermore, they realize that as soon as any third party gets hold of a public domain image they lose control of it. Wikipedia is starting a database of high-resolution images of public domain works. And Google is now getting in on things too. It will be interesting to see where this leads, though there weren’t any developments in time for my blossoms post.
Removing watermarks is trivial work these days. However, even though in the U.S. it is illegal to put a copyright watermark on a work that you don’t own the copyright to, it would also appear to be illegal (506d) to remove the watermark even if it was placed on the image unlawfully. A quick search on chillingeffects.org didn’t show any take down notices from museums or image libraries so it would appear they’re keeping a low profile. All of my copyright research was of American copyright law though, and since I couldn’t get answers on Italian copyright law for now I’m avoiding using the image.
Luckily, on this blog, the only copyright complaint I have received so far was for my post on Edward Seago. Since Seago died in 1974, his works are still very much under copyright. The Portland Gallery represents his estate and wrote emails pestering bloggers to give them copyright credit. In order to procure some of the images I had already promised credit to the Galleries who gave me the images. It all seemed too complicated so I just removed the post. I would still recommend that anyone interested in plein air painting check out Seago. Christie’s and Sotheby’s generally have great reproductions of lots of his work at any given time (without any copyright credits).
My own professional experience with copyright has been very limited. Once I stayed in a very beautiful house for a couple of weeks and left a sketch of the house as a gift. The owner was so pleased with the sketch that he reproduced the painting twice by printing the painting (via a photograph) on canvas for his other houses. In this case the painting was a gift so the copies multiplied, in my opinion, the success of the gift. But I don’t think it even occurred to the owner that it was a breach of copyright. In fact most people don’t realize that when they buy (or are given) a painting from later than the 1930s, they don’t also get the right to reproduce it.
Another time I had to sign away the copyright to a painting. I was painting on a private island in a lake in Udaipur, Rajasthan by taking a tourist boat early in the morning and coming back with the last one in the afternoon. You were normally only allowed to be on the island for 10 minutes. I got caught and promised a small sketch to the owner of the island if he would let me finish the big painting. The next day I arrived and had to fill out contracts giving them the copyright to the image for their hotel. (They also, generously, gave me a private boat so I didn’t have to take the whole tour). They sent a photographer the last day to photograph the image but he photographed the painting in direct sunlight though, so I don’t know how useful it was to them.
While plagiarism of ideas seems rife in modern art, I’m not aware of copyright disputes between traditional painters over subject matter. Charles Cecil often hides his Italian landscape locations from me, and I try to pilfer them mercilessly. Driving around searching is a big part of landscape painting, so it is somewhat understandable to protect one’s hard work. He does find great locations though, so I’ll continue to steal them the best I can. As for general copyright on subject matter, it can exist: San Quirico d’Orcia near Siena is trying to copyright its landscapes, and the Pebble Beach Company famously copyrighted its lone cypress tree to the point that painters weren’t allowed to paint it to sell later. It’s an interesting idea, technically landscape painters wouldn’t be allowed to paint anything ever again if everyone can copyright the view of their property.
Back to Tommasi though. Since this blog is not-for-profit and is intended for educational purposes, technically I can reproduce anything under fair use, provided I can find an image. Which, unfortunately, for the Primavera painting is not the case. The irony is rich here. We are talking about a style of painting that was arguably destroyed by photography, its painters forgotten, and now the few realist painters still interested in this work have to pay photographers to see it.