Public Domain Art in an Age of Easier Mechanical Reproducibility Kenneth Hamma, Exec. Dir., Digital Policy, J. Paul Getty Trust February 2005
Public Domain Art in an Age of Easier Mechanical Reproducibility
Kenneth Hamma, Exec. Dir., Digital Policy, J. Paul Getty Trust In principle a work of art has always been reproducible.1 In all the arts there is a physical component, which can no longer be considered or treated as it used to be, which cannot remain unaffected by our modern knowledge and power.2
Walter Benjamin opened his 1936 essay, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit, with the first observation quoted above. In order to extend that notion of reproducibility and suggest how it might mutate into a world that itself had changed from the time in which any historical work had been created, he turned to Paul Valéry with the second quotation above, which continues a bit further along: “Just as water, gas, and electricity are brought into our houses from far off to satisfy our needs in response to a minimal effort, so we shall be supplied with visual or auditory images, which will appear and disappear at a simple movement of the hand, hardly more than a sign.” Neither Benjamin nor Valéry could imagine the uses to which a copyright act might be put.3
Instead of asserting intellectual property rights in images of public domain works as nearly every art museum does now, it is argued here that publicly and pro-actively placing these images in the public domain and clearly removing all questions about their availability for use and reuse would likely cause no harm to the financial position or trustworthy reputation of any collecting institution and would demonstrably contribute to the public good. As those images have become digital assets and as the preferred delivery venue has become increasingly an electronic network, the ante has been raised to do so. The manner in which this might be done may require consultation with legal counsel. The fact of doing it, however, is not a legal decision but a business decision that can be evaluated by non-profits in measuring success against their mission.
1 2
Walter Benjamin, Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit Paul Valéry, Pièces sur l'art, (Le conquête de l'ubiquité) 3 E.g., “What we have right now is an exponentially expanding intellectual land grab, a land grab that is not only bad but dumb, about which the progressive community is largely silent, the center overly sanguine, and the right wing short-sighted. James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society (1966)
Public Domain Art in an Age of Easier Mechanical Reproducibility Kenneth Hamma, Exec. Dir., Digital Policy, J. Paul Getty Trust February 2005
This project briefing will examine limitations to access as it is currently permitted to surrogates of public domain works in collecting institutions and the direct implications of changing those limitations. There are several secondary consequences of acting on this proposal that are to some extent unpredictable even though they may be anticipated. As there are likely others, participants will be asked especially to contribute to thinking about the potential effect of the law of unintended consequences as well as reacting to the proposition itself.
A potential downside, if it truly is one, to any individual museum unilaterally taking down its assertions of intellectual property rights in images of public domain works may be to earn it a reputation of having effectively undermined the assumed future potential for all fine arts image providers. There is not, to begin with, much of a market, and what exists is not particularly choosey with respect to traditional museum values. One Monet is pretty much like another for a DVD cover that is to be mainly blue and green. One Boucher may be much like the next for a Mother’s Day greeting card. For these purposes an unencumbered image is much more likely to be used – by almost everyone – than one available for one-time world use under license. Further to unilateral action, if it is a large institution, other voices will likely point out some variation of “they could do this because they have revenues from tickets or bookstore or endowment.” While that would not be a particularly meaningful response, given what I suspect is the state of net revenues from image licensing, it would be effective spin.
In addition to the likelihood noted earlier that a better known collection will be also a better visited one, another potential upside may coincide well with a closely related issue, namely promoting the management of and respect for intellectual property rights in works that are not in the public domain. Permitting an enormous wealth of images of finely crafted works to circulate freely may act as something of a pressure release – assuming some great pent up public demand for this. More importantly if properly handled this opportunity to increase the public domain could be also an opportunity to explain the value of respecting rights within the time frame of copyright. That time frame of seventy years after the death of an artist may seem a long time, but it is ephemeral compared to the unlimited time span implicit in most current museum practice.