C&CI Update: Legal Action Against a Cultural Institution

(by Peter Hirtle)

On p. 195 of Copyright & Cultural Institutions (C&CI), I noted that “Court cases involving copyright infringement by cultural heritage institutions are rare.”  Thanks to a blog posting at Clancco.com, I am sorry to report that another has been added to the list. 

A professional photographer, Anne Pearse-Hocker, is suing a production company, Firelight Media, for copyright infringement for using three of her photographs in its documentary, We Shall Remain: Wounded Knee.  A copy of the complaint is linked from the Clancco.com posting.  She is also suing the Smithsonian Institution for copyright infringement and breach of contract because the National Museum of the American Indian made copies of the photographs for Firelight Media, seemingly in violation of the Deed of Gift that Pearse-Hocker signed when she gave the negatives to the museum.  I have secured a copy of that complaint from PACER and posted it to SCRIBD here (and below). 

It is always dangerous to draw conclusions from just one side of an argument; I am looking forward to reading the Smithsonian’s response.  Nevertheless, the document reveals the kind of misunderstandings that can result when repositories get into the permissions business. 

To me, the most troubling portion of the document is Exhibit D, the museum’s permission form, which states that “Permission is granted for the use of the following imagery, worldwide, all media rights for the life of the project.”  Firelight is then charged $150 in permission fees for the use of the three listed images.

If I was Firelight, I would assume that I was in the clear; I had worldwide rights.  What the form does not make clear is that the permission derives from the Smithsonian’s rights as the owner of the physical negatives.  Only in the small print on the back of the form, in item 7, does one learn that this permission only covers the rights the Smithsonian has (without specifying what those are), and does not encompass other rights.  But I can well imagine that a user would see “worldwide permission” and assume everything is covered.  The case is a strong reminder that when making reproductions for patrons and granting permissions, repositories need to be crystal-clear about what they are doing.  In many ways, I wish we could come up with a word other than “permissions,” which is so closely connected to copyright, when it is physical ownership that is in play.

I also wonder how much the desire to run a photo reproduction permissions business and generate some revenue may have contributed to the museum’s seemingly sloppy practice.  Regardless of how the case turns out, the legal process is going to prove to be expensive, and if the Smithsonian should lose, it could face up to $150,000 in statutory damages per image.  $50 per image in licensing revenue hardly seems worth it if the desire to generate revenue led to the mistakes that appear to have been made. 

This case should be interesting to follow – if it is not settled out of court.  

PearseHocker v US 00269

Comments

[Peter Hirtle]

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.

[Robet Panzer]

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
[email protected]