Wednesday, February 2, 2011

Museum Photos and Taking Photos in Museums - Copyright, Fair Use, Public Domain

You, Queenie, are in the Public Domain
Today I went for another fascinating lecture at the Marjorie Russel Textile Museum in Carson City, NV, where I had the pleasure of looking at and also photographing (permitted) a great many beautiful historical shoes.

After the lecture I mentioned to the curator, Jan, that the Billinghurst Stays (from this post) had generated a lot of interest and conversation when I posted photos I'd taken on my blog.  Jan said she wasn't sure I should/could be publishing these photos without permission from the Nevada State Museum, but this opened a whole can of copyright law worms, and here's why:

I took the photos of the stays, with permission, in a State institution.  Photographers own the copyright (registered or not) to the photos they take.  Where this gets fuzzy with museums is if the photo is taken of something in the public domain, or of currently copyrighted material.  Extra fuzz is added by what the object is - that is, fashion designs and clothing cannot be copyrighted.

Therefore, do I have the right to publish on my blog photos that I took with the permission of the owners of the object, inside a state museum with free admission?

I italicized these words because they each lend a specific twist to this argument:

  • I - I am the creator of the image, therefore I own the copyright.
  • permission of the owners - items, even copyrighted ones, donated to a museum are owned by the museum but the museum does not hold the copyright.
  • state - the objects inside the museum belong to the state, that is, they belong to the people, and are curated and maintained by state employees, paid with taxpayer dollars.
  • free admission - when you enter a museum that charges admission, by the purchase of your ticket you are agreeing to their terms and services, which often include relinquishing the ability to take photos inside the museum, etc.  With a museum that does not charge admission, particularly a state-run museum, you are not agreeing to these terms...it comes down to etiquette at that point.  If the museum docent or curator asks you not to take photos, don't do it, even if you are technically allowed to.

Now obviously I do not want to tread on the toes of the Marjorie Russell Museum's staff, resulting in anger and not being invited back for more interesting lectures, but I think this is an important issue for everyone to understand: museums, bloggers, photographers, joe-schmoes.

Here are a few more copyright/ownership/museum things you ought to know, as it relates to costume and art blogging:

  • Images and photographs of objects (gowns, let's say) taken by the museum are copyrighted.  We break copyright law every time we re-post an image of a dress from the Met or LACMA, or wherever, although museums have little ability to enforce this due to lack of funding, for one, and myriad other reasons relating to internet viral craziness.
  • Photographs of two-dimensional works (art, music, etc.) that are in the public domain, taken as exact reproductions (no creativity involved, it's just an image of a painting in a book, for instance), no matter who took the photo, are able to be used any way we like - they are not copyrighted, even if they are within a copyrighted book, museum catalog, etc.  The key here is that the subject of the photograph is in the public domain, and the reproduction of it  is "slavish."  This does not apply to photographs of three dimensional works. (Bridgeman Art Libaray v. Corel, 1999)
  • Copyright law as it relates to taking photos inside museums outside the United States is completely different country-to-country, so make sure you know what's what if you visit the V&A and expect to take photos of pretty dresses.
  • Just to be very clear: public domain (expiration of copyright) in the USA comes about 95 years from the publication, or 120 years from creation, whichever is shorter.  That means everything published in the US prior to 1891 (at the time I wrote this article, 2011), and I mean everything, is in the public domain.

Your thoughts and comments are most welcome.

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17 comments:

  1. I thought the copyright violation included financial gain. But I'm not a lawyer.

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  2. That is the general consensus, and it's what I thought/think too, although now I will want to check US Copyright Law *just* to make sure, and also to see what's involved in "financial gain." I run a blog that has links to my boutique where I sell things and make money...does that count as financial gain? I also occasionally have Amazon affiliate links on my blog...would that count? See? it's so hazy, but at least almost all of what we historical costumers deal with is just THAT old as to not have any restrictions on it, we just have to be aware of who took the photos of these old objects, publications, etc.

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  3. This is something so difficult for people recreating historical pieces. There are few to use for example and you want to make an exact reproduction. Elizabeth Stewart Clark wrote a guide on this http://www.thesewingacademy.com/wp-content/uploads/2010/08/2010-Ethical-Dressmaking.pdf .

    It would be nice to hear a final legal say on who really owns the copyright of a garment whose creator has been dead for hundreds of years.

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  4. Stephanie - that's an easy one, at least in the US. Fashion designs, even modern ones, cannot be copyrighted in the United States. This is very controversial and some legislation is on the books (not sure if this has yet passed) that will protect new fashion designs for 3 years, but after that they're fair game. There is absolutely no legal law prohibiting you from recreating a historical garment of any kind. It's down to your personal ethics, but don't let any one tell you (at least in the USA) that you can't do that, especially for personal reasons. You can even make exact copies of public domain dress patterns (95 years past its date of publication) and sell them.

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  5. Interesting article about copyright in pattens - recently a friend of mine noticed that a dress available in a local boutique was almost identical to a current Vogue pattern - and it was a very unusual dress with odd seams etc so it could not have been a coincidence. This is a big chain store too. She wrote to Vogue and never heard a thing back from them. Stuff them, I refuse to buy any more patterns from them or Butterick or McCalls since they started charging $25 US for sending 4 patterns to NZ in a golbal priority envelope costing about $12.50. I won't buy them in the local shops either. Anyway, slightly off topic but I was on a roll! :)

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  6. No, don't stop! This is great stuff to be talking about. It very directly effects us all. I am fairly certain, but could use some specific checking on this, that sewing patterns are protected under copyright, although the the design of the garment it makes aren't. Funny, huh? We see (c) symbols all over patterns, which means they are registered with the copyright office. I wonder, though, where the line is with the replica pattern. Interesting.

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  7. One thing about using a copyrighted image from a museum. Other than their inability to really do anything about it (other than send a cease and desist letter). They cannot really be angry as long as you're not earning a profit from the image, if you properly cite the image posted, and if you're really nice posting a link back. As an art historian I've used a lot of copyrighted images, but the general rule of thumb, is if it is for academic purposes it's fine to use, as long as you cite it properly (Chicago, MLA, AFA, etc).

    And as for the UK here is a quick rundown:

    If you go and visit the collection, and have a private viewing of garments (in a back room with gloves, with the curator, etc) you cannot post those photographs willynilly. They are still under the copyright control of the museum (being that it is their property you are photographing). You must obtain written permission to use the photographs in papers, blogs, etc. Same goes for a lot of images via museum websites. You *should* request the image file for publication, and there you have a quick form to fill out saying your intent with the image, etc, and within 24 hours you'll receive a high quality image in your inbox with permission to use it to your specifications. (If you are using it for something that will generate revenue, you might have to pay a fee...just depends.)

    As for taking pictures on display in the museum? Anyone who loves and appreciates art and art history know they better NOT use that flash, but since museums in the UK are free, and major tourist attractions, I, sincerely, doubt that releasing photographs from your visit to the V&A on your blog or facebook will matter. There are so many tourists who break the rules in these museums, that your blog photos are the least of their concerns. With that, though, depending on how much of a rule breaker you are, there are often times 'No Photography' signs plastered all over the walls at British museums.

    Sorry for the length Lauren, I just thought I would add to this based off of my experience...and this is not written towards any person specific, just in general. :)

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  8. I reckon that it is all just too hard, to be honest, and if we are using photos to further understand the items, and the provenance is given, then if anything it is in the interests of the institution, not to its detriment. As for patterns, well, if they don't care about a chain store ripping off their pattern, who's going to bother about making one for a friend who gives you a cash thank you gift! Of course if we're talking boutique pattern makers, I feel differently about that. It's all about power.

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  9. I popped down to say the same thing as Abby--if the image or information is supporting an academic argument, then citation uses come in. But question--in what setting can this be applied? For instance, if I write an article for a blog, can I claim my use of an image was academic if I cited it formally and my purpose was to put forth an academic argument?

    Also--I recall once that my family visited a museum with a no photographing rule in an exhibit (perfectly reasonable) but also a no sketching or note-taking rule. Was this because of fear of pen marks on the artifacts, or because they didn't want people copying down plans to replicate the eighteenth-century furniture (which is...um...what we did?)

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  10. Though they can be valid and useful, copyright laws are sometimes twisted and can get carried away. Some artists are claiming that their art, in a public setting (like on a street in plain view of everyone) cannot be photographed because it violates the artist's copyright rights and some cases have been to court. This is ridiculous. I think you should be fine (though I am not a lawyer I do see the validity of your point) the curator was perhaps being a bit too protective. One thing's for sure, we should not let our ignorance (or other people's such as the curator) of the law lead us to fear taking or publishing photographs. There is quit a bit of this going on in the world of photography where the police are harassing photographer's for taking photos in public. So my point? Know the law,it seems like you do!I appreciate this post and the points you made about the photographs you took. Keep posting your photos. They are beautiful and helpful.
    p.s. have you noticed that on some 'reality' shows they blur out all photos and art work? Even family photos. Paranoia or the law?

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  11. Interesting post on a rathwer confusing subject.

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  12. I think the blurring of images and faces on TV is about permission to show that person not being granted. When making a film, we have to get a release form for every person who appears, and every single place where we film. It's nuts. But it is important to protect people's privacy. I think it quite amusing though when they blur logos on t-shirts, trucks and products though, so they don't get any free publicity!

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  13. Rowenna- Personally, I treat the blog as 'academic' just because when I'm using an image it more than likely has some academic connection to it, and I'm not making any money from my blog. So, in my mind, I treat my blog like I would treat a college paper. This could be wrong, but I see no harm in it. If I was making money off my blog, then there could be issues, but I'm not sure.

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  14. I love that we've got this conversation going! Abby, thank you for clearing it up with policies in the UK, as I'm not familiar with them, even with the help of MrC. The main thing to remember, which perhaps doesn't seem that important at first, is whether or not you paid admission to get into the museum. If it is a free museum, and a public space (open to any member of the public at any time), then they can't stop you from taking photographs. They can, however, escort you from the premises and never allow you back, so that's the risk you take - it's always better to ask or get permission, I suppose.

    I think blogs definitely are more academic. The articles I write here are almost always in the interest of learning something, except when I post about new Etsy items I have for sale.

    In general I think most people, including curators and museum boards, don't have an accurate understanding of copyright law as it pertains to their collections. There are a lot of ins and outs, and specifics - is it a 3-dimensional, or 2-dimensional piece? is it 120 years old or older? is there admission to the museum, or is it a public/state space? I sent this article to the curator of the marjorie russel museum and am hoping to hear back from her. I'd really like to show you guys the shoes from yesterday!

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  15. What an interesting discussion!

    I'm not an attorney, but I have talked with several concerning copyright issues, as it is such a concern whenever one is a blogger.

    First, the idea that if the use is not for profit then it is okay is not always correct. The best example I can think of is the showing of DVDs in a setting other than for your private use. As a former teacher, we were warned all the time against showing DVDs other than those produced specifically for the classroom setting to our classes. There is no profit being made in showing a movie to a bunch of 10 year olds, but some movie companies have successfully argued that it leads to a loss of revenue due to lost sales.

    The fact that your use is for educational purposes does provide some protection. Under US law this is one of the things that makes up "fair use." If you use a photo from a museum's site on your site as part of a point you are trying to make, then you are probably covered under fair use. If you take every photo from a museum's site and reproduce it on your site, then the infringement becomes pretty clear. (As on some tumblr sites)

    In order for there to be copyright protection, the item has to be copyrightable (is that even a word?!)

    Items of clothing are not eligible for protection in the USA. The museum's photos of their collection are eligible, as are your own photos. I would assume that if a museum allows you to take photos, then the photos are yours to do with as you please.

    Would a public place like a museum be eligible for copyright protection?

    Possibly if the museum were the work and vision of an artist, and was itself considered to be a creative work. But a museum that is a collection of artifacts assembled in a building is not a creative work, is it?

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  16. Thanks for this discussion...I also understand from a designer friend ( and youall probably already know this), that any blog can be copyrighted as a "periodical".

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  17. With the permission of the museum employee (the guide who had led Obama, coincidentally) at the Jose Marti Memorial in Havana, Cuba, I took a picture of a 2 dimenisional exhibit piece they apparently created, depicting Marti's travels in the US, ie a US outline map with NYC inset, with circles and arrows, and some descriptors in Spanish.

    I would consider posting the photo to Wikipedia (en.wikipedia.org) or to Wikimedia Commons, but I am unsure about legal status of my photo depicting the map. I believe the museum charged admission, but it was handled by my tour group's leader, and I have no access to any terms.

    Any guidance is appreciated.

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