The
American Association of Museums (AAM)
immediately recognized the eroding effect of the ruling againstBridgeman on museum copyright claims.
See the review statement of 1999 by Barry G.
Szczesny, Government Affairs Counsel to the American Association ofMuseums at
(External Link) .
For the
Draft Report of the AAM Member
Museums Rights&Reproductions Survey 2003-4 Results , see the
pdf at
(External Link) .
Kenneth Hamma, Executive Director for Digital
Policy at the
Getty Trust , has argued the case that museums may be
better off relaxing claims to intellectual property in images ofworks of art in their collections, for financial, philosophical,
and legal reasons.
Kenneth Hamma, "Public Domain Art in an Age
of Easier Mechanical Reproducibility,"
D-Lib Magazine , vol. 11, no.
11 (November 2005),
(External Link) .
Hamma's argument is bolstered in part by a
2002 cost-benefit analysis of the sale of digital and analog imagesby European collections of culturally significant artifacts. This
study, commissioned from Simon Tanner and Marilyn Deegan by the
Andrew W. Mellon Foundation , sought to test the hypothesis that
"anxieties over reduced income [for digital images of works]in
cultural institutions may actually be [attributable to]a perceived
loss of the gate-keeping rights function, rather than actual lossof income for the medium, if measured against the pre-digital
environment."
Simon Tanner and Marilyn Deegan, "Exploring
Charging Models for Digital Cultural Heritage: Digital ImageResource Cost Efficiency and Income Generation Compared with Analog
Resources. A HEDS Report on Behalf of the Andrew W. MellonFoundation," Higher Education Digitisation Service, University of
Hertfordshire, 2002; see
(External Link) ,
esp. 2. The study surveyed 51 institutions and interviewed 15 ofthem in depth (eleven in the United Kingdom and four in continental
Europe).
The participants on balance considered
digital image production cheaper and more cost-effective thananalog, and charged 10.5 percent less for the supply of digital
images than for analog; the more maturely digitized collectionscharged on average 22.2 percent less. The study hence concluded
that "the gatekeeper function is no longer a reason to not provideservices in digital formats or to overly restrict access to digital
materials. The financial risk to income is relatively low." Itnoted, however, that the institutions tended to use permissions
fees to recover costs and, for commercial applications, perhapsturn a profit. Tanner and Deegan, esp. 19-23.
Even so, the
study suggested that image services are not a vital source ofrevenue in relation to the real costs to the institution, and that
the financial issues often cited by institution staff might berationalizations for less concrete concerns. Worries about digital
transformation appeared founded at least as much on "moral rightsissues," such as the museum's curatorial duty to maintain high
facsimile standards for works of art, and on loss of control overthe instantly reproducible digital image.
Tanner and Deegan, passim.
These
anxieties are likely to have subsided even in the few years sincethe study was conducted, as digital image capture has now replaced
analog photography in virtually all American and Europeaninstitutions of the kind surveyed in the study.
The lines of thinking suggested by these
surveys and reports are beginning to yield new initiatives inmuseums toward regularizing and liberalizing permissions and fees
for the scholarly and educational uses of images of works of art.The AAM survey of 2004 was meant at least in part to help rights
and reproductions staff respond more effectively to user requests.The reported fee structures generally appeared to take into account
the fewer resources and lesser commercial value of scholarlypublication, and in qualitative answers to queries about fee
reduction policies many respondents professed themselves quite opento negotiation and sympathetic to pleas of scholarly hardship.
AAM Member Museums Rights&Reproductions Survey 2003-2004 , 12-14, 16-28.
In March 2006,
the
Metropolitan Museum of Art announced its intention to develop
an online licensing system for images of all works in itscollections, through an arrangement with
ARTstor , the largest
non-profit digital image provider. The Metropolitan Museum willseek to distinguish commercial applications from scholarly use, and
radically reduce its use and permissions fees for scholarlypurposes, perhaps removing all fees for reproduction of their works
that are in the public domain. ARTstor will begin to serve as thescholarly license clearinghouse for the museum's images in the fall
of 2006.
If the Metropolitan Museum's welcome lead is
followed by other institutions, a more centralized rights-clearingorganization could be established in due course, either by
extension of the museum's arrangement with ARTstor to otherinstitutions or by development of a system on its model. The
Artists Rights Society (ARS) and Visual Artists and GalleriesAssociation (VAGA) already serve as such clearinghouses for artists
whose works are in copyright. These organizations have the goal ofstreamlining permissions while protecting the commercial interests
of the artists they represent, however, rather than facilitatingscholarly publication at minimized fees, as is the goal of the
Metropolitan Museum-ARTstor initiative.
See
(External Link) ,
www.vagarights.com.In the United Kingdom, the Design and Artists Copyright Society
(DACS) serves the same functions;
(External Link) .
