As museums modernize and seek to offer more of a virtual experience for the public, copyright law will play an increasingly important part in curators’ lives. That was underscored by the Getty Museum’s recent announcement that it will offer free downloads of high-resolution images of 4,600 works in its collection — an action that brings to the forefront this question: Does making digital copies of art in the public domain create derivative works protected by copyright? No, says writer Michael Weinberg in this timely article. He argues that the Getty digital files aren’t automatically copyright protected.
Museum collections, typically, include works both in the public domain and those protected by copyright. Art in the “public domain” no longer enjoys certain legal shields and may be used and reproduced freely without permission from the onetime copyright owner. Take, for example, Leonardo Da Vinci’s Mona Lisa, now ubiquitous in its commercial exploitation. If it were copied in Getty fashion, the high-resolution scan would be an exacting reproduction; that, in turn, would mean nothing original would be added, such as unique lighting, angles and background. Museums like the Getty, therefore, would not entitled to copyright protection in these copies.
The Getty and others may limit use of the files under its online Terms and Services. The Westside powerhouse has declined to restrict whether its downloaded images may be used for commercial or non-commercial use.
For those who sojourn up the hill, however, the digital files will be a boon, because museum-goers are barred in the Getty’s permanent galleriesfrom taking flash photos or using tripods and monopods. The public now can have its own high-resolution digital copies of favorite artworks do with them as they please.
The Getty is not alone in its recent moves to make its collections more accessible online. Institutions making similar moves include the Art Institute of Chicago, the Metropolitan Museum of Art and the Brooklyn Museum. The steps to open collections also potentially may affect the entertainment industry, which had to be cautious and deferential in displaying high-profile art in in television shows, due to cases like Ringgold v. Black Entertainment Television. There the court found BET liable for copyright infringement for showing without permission a poster of a Faith Ringgold’s painting in several episodes of the TV show Roc.