Control of Museum Art Images: The Reach and Limits of Copyright and Licensing

Abstract

Many museums and art libraries have digitized their collections of artworks. Digital imaging capabilities represent a significant development in the academic study of art, and they enhance the availability of art images to the public at large. The possible uses of these images are likewise broad. Many conditions of use, however, are defined by copyright law or by license agreements imposed by museums and libraries that attempt to circumscribe allowable uses. Often, these terms and conditions will mean that an online image is not truly available for many purposes, including publication in the context of research or simple aesthetic enjoyment. Not only do these terms and conditions restrict uses, they also have dubious legal standing after the Bridgeman case. This chapter examines the legal premises behind claiming copyright in art images and the ability of museums to impose license restrictions on their use.

This paper is one outcome of a study of museum licensing practices funded by The Samuel H. Kress Foundation. It is principally an introduction to the relevant law in the United States and a survey of examples of museum licenses. The project is in its early stages, with the expectation that later studies will expand on this introduction and provide greater analysis of the legal complications of copyright, the public domain, and the reach of license agreements as a means for controlling the use of artwork and potentially any other works, whether or not they fall within the scope of copyright protection.

This chapter was prepared for presentation at the Annual Congress of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), held in Vilnius, Lithuania on 13-16 September 2009. The co-author with Kenneth D. Crews is Melissa A. Brown, now the Scholarly Communications Librarian at New York University. A pre-publication version of this work is also posted on SSRN.