Public Domain Art

D-Lib Magazine November 2005
Volume 11 Number 11

Public Domain Art in an Age of Easier Mechanical Reproducibility
Kenneth Hamma


Art museums and many other collecting institutions in this country hold a trove of public-domain works of art. These are works whose age precludes continued protection under copyright law. The works are the result of and evidence for human creativity over thousands of years, an activity museums celebrate by their very existence. For reasons that seem too frequently unexamined, many museums erect barriers that contribute to keeping quality images of public domain works out of the hands of the general public, of educators, and of the general milieu of creativity. In restricting access, art museums effectively take a stand against the creativity they otherwise celebrate. This conflict arises as a result of the widely accepted practice of asserting rights in the images that the museums make of the public domain works of art in their collections.

Indeed, it is not at all clear that the institutional claims of copyright to such works would survive a legal challenge. The judgment in a 1999 case, BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., brought in a U.S. District Court for the Southern District of New York, held that the marketing of photographic copies of two-dimensional public domain master artworks, without adding anything original, cannot constitute copyright infringement when the underlying work is in the public domain. By and large, museums have been holding their noses and hoping this ruling will neither be broadly noticed nor challenged. […]

Indeed, restricting access seems all the more inappropriate when measured against a museum’s mission – a responsibility to provide public access. Their charitable, financial, and tax-exempt status demands such. The assertion of rights in public domain works of art – images that at their best closely replicate the values of the original work – differs in almost every way from the rights managed by the recording industry. Because museums and other similar collecting institutions are part of the private nonprofit sector, the obligation to treat assets as held in public trust should replace the for-profit goal.

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