Copyrighting Culture: Photography and the Public Domain

Photography and Culture (Forthcoming)

Posted: 30 May 2018  

Jani McCutcheon

The University of Western Australia Law School

Date Written: May 19, 2018


This article is inspired by the New York Metropolitan Museum of Art’s recent announcement that it will make 375,000 high-resolution photographs of its public domain artworks available without restriction, waiving any copyright it may have in the photographs. The announcement prompts reflection on the intersection between the photograph, copyright, the practices of cultural institutions, and the dissemination of cultural goods. The article notes how the photograph is an essential fulcrum in the contemporary dissemination of culture, and how this can be chilled by control over the photograph through copyright, but also through contract and the physical possession of photography’s ephemera. This leads to tensions between the property interests of cultural institutions and the public interest in accessing cultural artifacts through the medium of the photograph. The article probes the copyright status of photographs of public domain works, and explains how different courts have navigated the issue. It concludes that photographs of public domain artworks lack the originality essential to copyright subsistence, destabilizing the foundations of cultural institutions’ licensing models and public perceptions of property in photographic surrogates of public domain paintings. To capitalize on the socio-cultural benefits of the photograph as a mechanism of cultural dissemination, more cultural institutions must emulate the Met, and dispel the illusion of private property rights in the public domain.

Keywords: copyright, public domain, culture, contract

JEL Classification: K

Suggested Citation

McCutcheon, Jani, Copyrighting Culture: Photography and the Public Domain (May 19, 2018). Photography and Culture (Forthcoming) . Available at SSRN:

Jani McCutcheon (Contact Author)

The University of Western Australia Law School ( email )

35 Stirling Highway
Crawley, Western Australia 6009

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