By Barbara Hoffman
This article was published in Museum News January/February 2005.
Q: We seem to have a lot of internal confusion in our museum over which items in the collection are copyright protected and which are not. With all the new court rulings and legislation, copyright law seems like a moving target. Are we typical of other museums out there?
A: Museums sit on both sides of the copyright fence. They negotiate with copyright owners, such as artists or their estates, and also are owners of valuable intellectual property assets in their collections including, for example, digital photographs of collection items.1 Copyright also provides broad protection for a museum’s collection since the law generally prohibits unauthorized reproduction, alteration, distribution, performance, or display of copyrighted works.
Furthermore, museums, like all organizations, may freely use, copy, adapt, distribute, and display an image in the public domain without fear of copyright infringement.2 A museum also may make a derivative version of a public domain artwork that may itself be copyrightable. The public domain is an expansive concept that includes facts and ideas. A significant part of the public domain consists of works that once were protected by copyright but have lost that protection by forfeiture, abandonment, or expiration of their term.
Still, a museum seeking to exploit its own collection must use due diligence to establish whether works actually are in the public domain.3 Reproducing and distributing a work without the copyright owner’s permission is against the law unless it is considered “fair use.” But determining the status of such works is not always easy, particularly for works created before 1978.4
During its 2003 term, the U.S. Supreme Court decided a copyright-related case that has relevance to these issues and to those who protect, use, and license fine art images. Eldred v. Ashcroft (2003) upheld the constitutionality of the Copyright Term Extension Act (CTEA, the “Sonny Bono Act”).5 This 1998 law retroactively extended the duration of copyright from “the life of author plus 50 years” to “the life of the author plus 70 years,” in the case of individual works, and from 75 years to 95 years in the case of works of corporate authorship or first published before Jan. 1, 1978.
The extension was challenged by Eric Eldred, a New Hampshire-based Web publisher who distributes public domain books via the Internet. In Eldred v. Ashcroft, he argued that the Internet and digital technology made it possible for people to create and distribute new works made from older ones but that CTEA put limits on what he considered this First Amendment right. His two central claims were (1) that extending existing terms violated the Constitution’s “unlimited times” requirement and, (2) that extending terms by another 20 years violated the First Amendment.
In a 7-2 decision, the Supreme Court determined that CTEA was indeed constitutional and that the Intellectual Property Clause of the Constitution gave Congress the power to extend the term of copyright. The Court also addressed the appropriate balance between copyright and the Free Speech Clause of the First Amendment, noting that copyright law and doctrine were developed in response to concerns about the proper balance between intellectual property and free expression. Thus, said the Court, ideas and facts, unlike expression, are not copyrightable, and fair use of another’s copyrighted work is protected from a claim of infringement by Section 107 of the Copyright Law. The Court also found that CTEA supplements, rather than restricts, traditional First Amendment safeguards by giving libraries, archives, museums, and other nonprofit educational institutions greater latitude in using copyrighted works for purposes of scholarship, research, or presentation during the extended 20-year term.
Eldred’s battle cry had been advocated by Stanford Law professor Lawrence Lessig, who succeeded in having the Public Domain Enhancement Act or PDEA (H.R. 2601) introduced in Congress on June 25, 2003. “Having failed in the argument of constitutional principle,” Lessig stated, “I turned to the argument of politics.” The bill, currently in the House Subcommittee on Courts, aims to make it easier for older and endangered copyrighted works to fall into the public domain. If the bill becomes law, copyright owners who desire an additional 20 years of protection will simply pay a $1 fee 50 years after the work was published and every 10 years thereafter until the end of copyright term. Materials published between 1923 and 1942 (which would have gone into the public domain if not for CTEA) and that copyright holders do not intend to exploit commercially (i.e., presumably because they failed to register) would enter the public domain.
On the positive side, more works would pass into the public domain sooner and the registration/renewal process outlined by PDEA would make it easier to identify owners of copyrighted works. Lessig argues that one of the hardest things under our current system is to locate the current copyright owner; although there are incentives to encourage copyright registration, it is not mandatory.
On the negative side, since 1989 when the United States agreed to adhere to the principal international copyright treaty, the Berne Convention on Literary and Artistic Property, copyright formalities have largely disappeared. Berne mandates that the rights it guarantees “shall not be subject to any formality,” such as registration or notice of the author’s claim of copyright. Before that time, under both the 1909 and the 1976 Copyright Acts, many authors, photographers, and artists inadvertently lost their copyright when they failed to comply with copyright formalities, though the 1976 act did allow for corrective measures such as registration.
While in general museums benefit from an expanded public domain, PDEA as drafted may cause loss of copyright simply due to ignorance of the law or inadvertent failure of a museum registrar to file for registration. Moreover, PDEA makes the initial term of copyright even shorter than the previous term—i.e., from publication (rather than the life of the author) plus 50 years. In principle, museums would benefit both from a registry and the placement of works whose current status is unclear into the the public domain. PDEA, however, seems to run contrary to the Berne Convention and international copyright relations, and legislators must resolve those difficulties before it passes.
Notes
1. In Bridgeman Art Library, Ltd. v. Corel Corp., the court found that a slavish copy of a work in the public domain did not satisfy the standard of originality required for copyright protection under either U.K. or U.S. law.
2. Moral rights as opposed to economic rights, principally the right to attribution and the right to integrity, have only limited protection in digital environment in the United States. However, such rights are strongly protected in France, Italy, Spain, Germany, and Japan and may not be perpetual and inalienable. Since the online environment, by its transitional nature, is one of the natural ambits of the use of the digital image, the issue of moral rights turns into another problem to be solved by means of legislation.
3. Images in archives, museums, libraries, and collections may have multiple layers of authorship: the underlying copyrighted work, the photograph of the original work, or its digitized version. A software producer, a museum curator or multimedia producer who obtains rights to use one image does not automatically receive permission to use the other works of authorship.
4. Until 1978, the term of federal copyright was 28 years from the date of publication. To maintain copyright protection during the second, or renewal, term a copyright owner had to file a renewal application during the 28th year of the initial term. Otherwise the work would fall into the public domain. That changed with the passage of the 1976 Copyright Act, which provided that federal copyright protection would run from the work’s creation and last until 50 years after the author’s death. At first, Congress retained the renewal feature for works copyrighted and still in their initial term before Jan. 1, 1978, but it 1992 it automatically extended the second term for work copyrighted between Jan. 1, 1964, and Dec. 31, 1977.
5. Dastar Corp. v. Twentieth Century Fox Film Corporation (2003), to be discussed in a future issue, held that the Trademark Law did not prevent the unaccredited copying of an uncopyrighted work in the public domain.
Barbara Hoffman practices art, intellectual property, and entertainment law in New York City where she represents artists, museums, photo archives, and others. She is the current chair of the International Bar Association Committee on Art, Cultural Institutions and Heritage Law, has written extensively on art law subjects, and is the author of Exploiting Images and Image Archives in the New Media: Goldmine or Mine Field, Kluwer Law International, IBA 1999. In a forthcoming issue of Museum News, she will discuss related trademark law.
