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July 04, 2010

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Bob, nice to hear from you on this issue. We are in agreement that Bridgeman means that the repository cannot claim a copyright in its slavish reproduction. But I would disagree that a museum or archive reproduction is a "derivative work." There is plenty of debate about whether to have a derivative work, there must be separate copyrightable content created. I come down on the side that says that there must be new content in order to have a derivative work, which would exclude a slavish reproduction from the category.

You raise an interesting issue about whether a repository can license the use of a reproduction made from its collection when that reproduction is an illegal copy.

Peter, It is nice to hear your views on this issue, which we all know is as old as the hills. Unfortunately, the Smithsonian document is more of the standard for museums than the exception. When pressed about such language, the two prevailing responses are that 1. the museum is claiming derivative rights in its photographic or digital copy and/or 2. the "permission" fee is for the rental of the museum's property: the photo or digital file.

1. is a spurious argument for two reasons: A. As adjudicated in Bridgeman v. Corel, with the possible exception of images of three dimensional works such as sculpture, there is little in a photographic or digital reproduction of a 2D work that is different from the original other than that imposed by the change in media, and hence the image is not a derivative, but a rather a slavish copy, which does not meet the threshold for a separate copyright B. Even if one agrees that the photo/digital copy is a derivative work, derivatives are under the exclusive control of the copyright owner and hence, the museum has no right to make the copy in the first place (except for fair uses like archiving), no less send it to third parties for further reproduction.

I don't want to pick a fight with museums since artists rely on them as much as the other way around, but it seems to me that after all these years of VAGA (and others) complaining about this practice that it still exists. I find it difficult to believe that the practice is "sloppy". It seems clearly deliberate. The word "permission" continues to be prominent while clauses about artists' rights are typically buried in the small type, usually on the back of the paperwork. The implication is that that the museum has more rights than it really has. That said, I am all ears as to other explanations for this practice.

Best regards,

Bob Panzer
Executive Director
VAGA
rpanzer@vagarights.com

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