Securing Digital Image Assets in Museums and Libraries: A Risk Management Approach

Library Trends, Fall, 1999 by Teresa Grose Beamsley

In a world of increasingly complex legal issues, few pose more varied and vexing problems than those surrounding copyright and the ownership of images and image surrogates. Copyright laws were created to protect the rights of individuals to own the expressions of their ideas (Malaro, 1985, p. 113). Copyright is actually a suite of rights that may be conveyed, transferred, or retained, singly or in sets. Copyrights include (a) the right to reproduce the work, (b) the right to produce derivative works from the original, (c) the right to distribute copies for sale, (d) the right of performance, and (e) the right to display the work. Before 1978 in the United States, copyright existed only if the artist distributed the work with the copyright symbol; failure to do so was deemed a waiver of copyright. Copyrights to works acquired by a museum were assumed to transfer to the museum unless specific statements were made to the contrary. After the revision that took effect in January 1978, copyright was considered implicit in the act of creation and could only be waived by a statement to that effect. Museums can no longer assume that rights transfer automatically.

Until recently, expression of ideas implied the act of creating something with physical presence: a book, a painting, or a better mousetrap. Rights of authorship could not be enforced without recourse to referencing something tangible or a tangible copy of a work. Digital representation is not easily categorized as having physical presence; there is no question that original work is involved, but marking or branding or seizing control of the "thing" that is created either as an original work or copy is conceptually difficult. As John Barlow (1996) describes the situation, under original copyright law "the bottle was protected but not the wine. Now the bottles are vanishing" (p. 11). Digital assets are the wine without the bottle. Controlling the use of digital image information representing items to which the museum clearly has copyright is difficult due to the accuracy with which duplicates can be made and the speed with which they can be disseminated (Bearman & Trant, 1997). Ambiguity regarding rights to photographic and digital reproductions of works in the public domain further complicates the process of enforcement and control (Akiyama, 1997). These reproduction rights, historically defended by museums and used to generate licensing income, have been threatened by a recent court decision that has implications for the control and use of digital reproductions. In this case, the Bridgeman Art Library, a British company that licenses transparencies of public domain art works that are owned by museums and collectors, brought suit against Corel Corporation, makers of a CD-ROM product containing digital reproductions of well-known paintings including 120 from the Bridgeman portfolio. Corel neither licensed nor requested permission from Bridgeman to use the works over which Bridgeman claims to have sole control. Bridgeman maintained that Corel had violated their copyrights; Corel countered by claiming that the museums and collectors could not assign to Bridgeman the rights that pertain to works in the public domain. The court ruled in favor of Corel, finding that substantially exact photographic reproductions of two-dimensional works of art are not copyrightable because they do not involve original work ("Copyright Case," 1999). The implications of this decision are serious. If it is upheld, museums will neither be able to exercise control over the use of image reproductions of public domain items in their collections nor to charge copyright fees for the use of such images, no matter the format.