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A question came up today as I was walking around the Metropolitan Museum of Art in New York City. People were snapping pictures; others were buying books and posters, T-shirts and all sorts of merchandising.  A friend asked me if they took a picture of a Renoir, a painting that is no longer under copyright, and started selling posters, would they be violating any copyright or other rules?  For that matter, would I have a copyright on that image? This actually brings up a few legal issues.  So let’s take them step by step.

 In other articles, I have discussed the idea that copyright is to protect your creative work, so, as soon as you click the camera shutter and the image lands on the sensor, it is your creative work and therefore your copyright.  But that doesn’t apply for taking a picture of a Renoir.  Why?  Well, for that you have to look at the Copyright Act:

  (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, . . .

So your work has to be “original”.  If you are just taking a picture of someone else’s work, then there is no copyright protection because you didn’t do anything original. But what I find interesting is that this only applies to two-dimensional works; so flat paintings or pictures.  The Copyright Act also says

 The rights . . . shall not apply to any reproduction . .

 The courts have said that a photograph of a painting or other picture is just reproduction.  It does not rise to the level of originality required for copyright protection.

However, if it is a 3D scene, like a photo of Rodin’s Burghers of Calais, then it has copyright protection because it is an original work.  (Burghers of Calais is amazing and has its own interesting copyright issues surrounding international copyright. To read more on this great piece, click here.) The photographer chooses the angles, the lighting, the depth of field; it is not a reproduction of the work, but something original.  Each photographer would take the picture differently.

 OK, so that is the copyright part.  But we also have a contract issue.  When you buy your ticket to get into the MET (even if you don’t pay as payment is not required but voluntary) there are terms of use that you agree to in exchange for entering the museum. Here is the MET’s policy:

 Still photography is permitted for private, noncommercial use only in the Museum’s galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever. Photography is not permitted in special exhibitions or areas designated as “No Photography”; works of art on loan from private collections or other institutions may not be photographed. The use of flash is prohibited at all times and in all galleries. Movie and video cameras are prohibited. Tripods are allowed Wednesday through Friday, and only with a permit issued by the Information Desk in the Great Hall.

The reality is that this is not as cut and dry as the Museum would like you to think. There are some legal scholars that would say that this agreement is not enforceable for two-dimensional works that are in the public domain. Just don’t take a picture of the room or building with it.

 But what about a public domain image taken off the MET’s website. There you have some limitations by the licensing statement on the website, which you implicitly agree to when using the site.  Here is that clause:

 Copyright and Proprietary Rights. The text, images, trademarks, data, audio files, video files and clips, software, documentation or other information contained in these files, and other content on the Site (collectively, the “Materials”) are proprietary to the Museum or its licensors. The Museum retains all rights, including copyright, in the Materials. Copyright and other proprietary rights may be held by individuals or entities other than, or in addition to, the Museum.

Again, you probably have the same issue.  An image taken from the website where the image is public domain, is likely not bound by this license agreement.  But if you took a screenshot of the layout of the images; if they are arranged in a particular way with a particular background, then the arrangement would have copyright protection.  But the individual images are likely available for use, despite what the Museum might say in its Terms and Conditions.

 I qualify those statements because laws are rarely absolute.  There are other issues at play, such as fair use arguments and there are arguments for an against these issues.,  But these are my opinions on the matter.

 As usual, if you like this, It would help us out greatly if you could please post it to your social media.  Thanks for reading!

About 

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on intellectual property contact him through his website at SchlackmanIPlaw.com. His photography can be seen online at at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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