For the past several years, some influential net denizens have begun a bit of a crusade against museums who prohibit photography in their galleries. Most notable of these (at least in my awareness) are Cory Doctorow over at BoingBoing and Thomas Hawk, a well-known San Francisco photographer. For example:
Photo-bans at pop art shows — irony impairment, or Dadaism?, Doctorow – November 13, 2007
On Renegade Photography [at SF MOMA], Hawk – November 25, 2007
Spy museum bans photography, Doctorow – June 11, 2007
Editorial: On Camera Policies in Privately Owned Public Spaces, Hawk – August 19, 2004
LACMA’s Magritte exhibit: This is not fair use, Doctorow – January 1, 2007
There are more posts on this topic, some of which raise valid questions, such as the article, Vegas Neon museum: our job is to restrict our collection and Stop sketching, little girl — those paintings are copyrighted! (posted by Xeni Jardin, not Doctorow).
The complaint, or claim, is simply this: because museums are public institutions, photography in any way, shape, or form should be allowed by the public within a museum gallery. Not only should photography be allowed, it is an absolute right to be allowed to do so. Denying photography in museum galleries infringes upon the rights of the public.
Time and time again, Doctorow and Hawk have refused to acknowledge the realites of how museums assemble exhibits and collections, even when those realities have been explained in detail (I have done so myself on a few occasions, and I have seen other similar attempts by sympathetic readers). Most recently, I have summarized the museum position in these comments to Doctorow (with a couple of edits for clarity):
Museums rarely hold copyright in the modern and contemporary works they display, and are thus legally bound by the limitations placed on them by individual artists and artists’ rights collectives. As a result, they must usually prohibit photography (reproduction) in exhibitions containing works protected by copyright. Generally speaking, museums these days would prefer to allow photography, but current legislation does not provide them with any kind of “out” for doing that. In fact, museums themselves need artists’ permission to photograph their works. Others may imagine an “absolute right” to photograph whatever they want, but it simply doesn’t exist. And the fact that a museum is a “public institution” is a red herring; that has nothing to do with it.
Museums always have to “err” on the side of caution. They are risk adverse (otherwise known as financially and ethically responsible.) They simply don’t have the money to fight litigious copyright holders.
For the record, here’s a rundown of how exhibitions are organized:
1. Exhibitions are organized either by an external group or internally by the museum’s curators. Large art museums these days often organize so-called “blockbuster” exhibitions in order to get people in the door, or organize regular shows with popular or innovative artists. These exhibitions are often composed of modern and contemporary artworks whose copyrights are held by the artist, the artist’s estate, or an artist’s rights association.
1a) when a museum accepts an artwork for acquisition into the collection, they are not always given the option of receiving full copyright to works. As a general rule, they own only the physical work of art, and the copyright belongs to one of the parties named above.
2) All of the contracts signed to accept these shows also reflect the copyright status of the works. With a mixed exhibition of modern and contemporary artists, some copyright holders (I’ll call them CH for short) do not wish to allow their works to be photographed for publication or publicity purposes, or are very concerned that “illicit” images of their works will be circulated. It is up to the museum to honor the CH’s demands and adhere to the contract of the CH, lest they end up being sued by CHs for breach of contract.
BELIEVE ME – most museums would like nothing more than to allow free photography in their galleries. It’s a hassle to prohibit it. It is part of our missions to promote access to collections (although legally, “access” doesn’t include the right to reproduce), and we understand how photography in galleries can benefit visitors. HOWEVER, under current copyright law and the litigious nature of many copyright holders, public institutions cannot afford to challenge the CHs. Not only are the attorney fees expensive, but if we refuse to work with the CHs, you can bet that there will be empty galleries, or galleries showing only prehistoric to 19th century art.
…
Publicly-funded artwork still doesn’t imply an automatic grant of copyright to the owner. It’s still in the hands of the artist unless a written contract clearly and explicitly states otherwise.What should happen is VASTLY different from the legal reality. It’s true that if every museum refused to put on shows where the copyright was unreleased, that might change things, but you’re also dealing with thousands of museums trying to deal with thousands of CHs, some of whom really don’t want to give up their rights (and trying to put together an exhibition with 20 different artists or CHs, each with a different copyright requirement, means that shows are difficult to produce to begin with. If a museum had to negotiate a special exhibition copyright with each CH, shows would never be produced and it would be an incredible waste of public funding to even attempt to put on such shows).
In addition to the above comments, it would, in my opinion, be absolutely ridiculous to expect curators to organize their exhibitions based upon the copyright requirements of the CHs. It would be like herding cats to do so, but it is vastly more important to allow curators to develop coherent, exciting, and educational shows.
With all of that said, I would like to see museums take a more proactive approach, if possible, to securing copyright releases for photography in galleries and educating their staff properly about copyright issues. Some of the complaints, such as this from Doctorow are certainly valid and may be considered silly on the part of the museum: the gallery has hung the show with a “no photography” policy (not a “no flash photography” policy, either), and then extend the ban to the “no photography” signs themselves, which, they claim, are copyrighted works. I attribute many of these instances to a lack of knowledge on the part of museum staff.
However, the current climate being what it is, I don’t really know what else museums can do to retain the goodwill of those photography zealots who insist that they have a legal right to photograph wherever they desire. I would not be concerned about them except that when they have a vocal and dedicated following, such screeds undermine museums’ efforts to reach out to their public and produce quality exhibitions. I find it both unfair and unkind.
~Perian, with additional input and edits from Amalyah
December 10th, 2007 01:04
Thank you for writing this – I actually got quite upset with Doctorow and BoingBoing after these articles, because the utter entitlement was too much to bear, and stopped reading the site altogether.
We are all working toward the same goal, after all, and the system in which museums operate under, the copyright code, is the issue.
December 10th, 2007 05:34
The more I think about this the more it seems to make sense for museums (and other exhibiting institutions) to change their signs to make the reasons transparent.
Thus the straight out “No photography” sign becomes “Contractual agreements with the artists and their agents prevent us from permitting photography in this exhibition”.
It might not be as catchy (and poses design and readability problems) but the added transparency opens the way for the audience to become involved in a dialogue around rights and permissions.
My feeling is that making these contractual obligations more transparent is akin to offering a ‘making of’ or ‘behind the scenes’ section of an exhibition website or catalogue. It helps engage the public in broader understanding of ‘how museums work’.
December 10th, 2007 09:42
You raise some excellent points. But I don’t think that photography bans are always placed out of a need to protect copyrights.
That copyright is, and should be enforced guarantees financial rewards to the very creative in our society who have dedicated themselves to enriching the rest of our lives with their work. Legally, I have no question that museums have a duty of care to prevent photocopying of works under copyright. However, I have seen museums impose photography bans (not just flash photography bans) on exhibitions (say, of Monet) of works entirely in the public domain (because they were created before 1923).
Without meaning to generalize, this is often precisely because the museums (or the artists, estates, etc.) *don’t* have copyright to the work anymore. They can’t sue for copyright infringement, and they can’t even claim copyright on their own reproductions in their gift shop (see Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)), so they impose the photography ban to ensure they can still make money on the exhibit. (see Butler (1998)—citation below). I certainly understand the museum’s position here—with the cost of mounting an exhibition such as this, they can be forgiven for trying to recoup their costs. And it is within their legal right. But I think it’s right to raise an eyebrow or two at attempts to impose copyright on public domain works.
It’s also a big problem, though, that with the current copyright terms, works created in 1924, but whose author died in 1970, won’t enter the public domain until 2050. Copyright is allowed for limited terms by the Constitution as a balance between the creator’s need for compensation and the public’s right to benefit from the work. A perpetual copyright (as our current code approaches) loses that balance.
In the case of the 2nd grader sketching Matisse (in the boingboing article), I have to wonder whether the museum administration would have stood by their call, or if it was a guard just being (perhaps overly) careful. What she was doing seems like an open-and-shut case of fair use to me.
Some thoughts anyway, meant in a friendly spirit. I’ll be interested to hear thoughts from those more connected to the museum world (as I am only partly).
Eric
Butler, Kathleen Connolly. “Keeping the World Safe from Naked-Chicks-in-art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions” Comm/Ent: Hastings Communications and Entertainment Law Journal 21 (Fall 1998): 55-127.).
December 11th, 2007 12:00
Eric:
It might actually be somewhat interesting to trace back the “no photography in gallery” rule, since it’s a rule which began decades ago and has only now heated up. The reasons I have heard over the years vary:
-Photographing the galleries will give thieves insider knowledge of how to get in and steal stuff (not certain how much of a risk there really is)
-Flash on cameras will harm the artwork (true)
-Tripods gives the photographers the ability to take reproduction-quality images of the works (true) and if they fall or are tripped over, may damage artwork (true)
-People photographing works in the gallery means they won’t be purchasing postcards from the gift shop (unlikely, but possible)
I have a collection management background, FYI. collection managers tend to be more particular over gallery restrictions than many other types of museum staff. with that said, I’m rather in favor of the public photographing – without flash and tripods – in the galleries. Museums don’t make much money on postcards, their security systems should be able to handle any security threat free-ranging images of galleries might pose, it’s incredibly difficult to stop photography anyway with everyone having tiny cameras, and publication of those snapshots only increases awareness of the museum.
Unfortunately, as I’ve stated above, museums don’t necessarily have the leeway to permit it. I won’t let museums entirely off the hook, though, since it’s clear that some museums are still afraid of photography, citing the reasons I outlined above. to those institutions, I would urge that they examine their policy and evaluate it, considering current law, what they might gain or lose from allowing the cameras in, and which threats are real or imagined.
December 11th, 2007 01:54
Thank your for your insightful comments and for contributing further to the conversation about photography in museums.
In your post you state: “Museums rarely hold copyright in the modern and contemporary works they display, and are thus legally bound by the limitations placed on them by individual artists and artists’ rights collectives. As a result, they must usually prohibit photography (reproduction) in exhibitions containing works protected by copyright.”
I find this argument problematic. For instance. How is it that the de Young museum in San Francisco as well as the MOMA in New York (perhaps the greatest contemporary art museum in the U.S.) both allow photography in their permanent galleries while the SF Moma does not? Are works of art *not* copyrighted in NY but they are in SF? How is it that the MOMA in NY has not run afoul of the same copyright limitations that would arise from a lift on the photography ban at the MOMA?
What’s more, many museums that do not allow photography do not allow it for works of art that are clearly beyond the copyright lifespan. For instance, the Uffizi museum in Florence shows mostly works of art hundreds of years old and yet the photography ban remains in place.
Ironically, despite their stated mission to: “collect, preserve, study and exhibit neon signs and associated artifacts to inspire educational and cultural enrichment for *diverse members of our international community,*” the neon museum in Las Vegas refuses to allow photography of their collection. Do they really expect that “diverse members of an international community” are all going to hop in an airplane and fly to Las Vegas to see the collection? Maybe they should change their mission statement to diverse *wealthy* members of an international community who can afford to fly to Las Vegas to see the art.
Neon signs were meant to be publicly shown. All of these signs were at one time clearly in the public eye and easy to photograph.
Copyright liability is a red herring in the crusade against photography. The SF MOMA bears no more liability for the unauthorized reproduction of copyrighted works than the SF MOMA does. In fact, neither museum has any liability.
The fact that NBC television makes a television show readily available (and able to be pirated) by broadcasting it publicly does not open them up to copyright liability. Even if people actually record these programs and then illegally put them on file sharing networks, make illegal DVD copies, they bear no liability for this infringement.
The argument that a visiting artist might not be willing to show their work should photography be allowed can easily be alleviated by allowing photography in permanent collections, while restricting it in temporary collections. This is the policy of many museums such as the de Young, the MOMA and the Oakland Museum of California.
Most museums enjoy tax exempt preference for promoting the arts to our society. When they turn proprietary and seek to limit the viewing of these collections they do the public a disservice.
December 11th, 2007 03:52
So when I photograph a Starbucks coffee cup, I am violating copyright?
The Starbucks logo is copyrighted and I’m photographing it. So that makes me a criminal?
When will institutions like Museums, the Recording Industry, etc. stop treating consumers as thieves? We’re your bread and butter not thieves.
December 11th, 2007 03:53
Incidentally, you are right…Museums are not the Enemy…the people running them are.
December 12th, 2007 12:31
One more reason to ban photography altogether: Photographers aren’t always careful enough to turn off their camera’s flash every single time. That’s more of a problem with some cameras than others, but I’ve taken a few accidental flash photos in museums.
Incidentally, no, Sean, you’re not a criminal for photographing a Starbucks cup. If, however, you display your photo, you can be held civilly liable, even if you don’t make any money from the display.
December 12th, 2007 05:20
“Most museums enjoy tax exempt preference for promoting the arts to our society. When they turn proprietary and seek to limit the viewing of these collections they do the public a disservice.”
If all reasons to disallow photography are in fact invalid or can be worked through then it would be great if part of the requirement for tax exempt status required that the museum allowed photography? Sounds like a great opportunity to get your legislature involved.
If there is additional overhead associated with allowing photography it would also be great if the additional cost were added to those wishing to take photographs..
December 13th, 2007 12:07
I don’t have much to add (this was a great post, though!), except that some might get a kick out of a website I recently stumbled across – Strictly No Photography, http://www.strictlynophotography.com/
A sign with the reason stated, as you suggest, might help, but in today’s society where everyone is infringing copyright all of the time (wasn’t that another post on this blog?), I don’t know how much good it would do.
December 13th, 2007 02:07
Thanks so much to all of those who have replied. I’ll reply more in-depth when I’m not about to fall over, but I did want to ask you, Seth, how, exactly, your proposal would work (the one about a requirement for tax-exempt status would be photography in galleries)? Realistically, I mean, and taking into account how the 501(c)3 process works.
Additionally, please remember that the key point here is not that museums are trying to limit viewing of these works. They key point is that museums are covered by the same limitations that would surround these pieces if they were displayed in a for-profit gallery.
I have to admit some frustration that that point seems to consistently be overlooked in favor of the cry, but we waaaaaant to photograph in galleries. I want a pony, but I can’t have it in my house. City zoning won’t allow it. Nothing I can do about it. I’m not going to blame my landlords for the zoning policies.
December 13th, 2007 04:32
Perian, my comment was specifically in regards to Thomas’ statement and was to point out that if he has an issue with a museum receiving a tax break and not allowing photography then that is something that would need to be taken up with his legislature.
In regards to the “key point” in your reply it isn’t entirely clear that it is in fact the key point since according to Thomas the NY MOMA does allow photography. Do you know if they do allow photography and if they do why they are able to and you are not?
December 13th, 2007 11:34
Seth: Guh. Sorry! that’s what I get for not reading everything straight through and replying when it’s past my bedtime!
Regarding the NY MoMA – I’m not clear on the specifics of their collecting practices, but I’m going to make a guess that they were, perhaps, more diligent about gathering the rights to the works they collected than SF MOMA did. Maybe because they were closer to the NY art scene, they were able to gain copyright from the artists directly. I really couldn’t say, and that’s pure speculation on my part. It may even be as simple as MoMA being more willing to assume liability if a rightsholder complains.
I do know for a fact that many, if not most, of the works owned by SF MOMA have their copyright elsewhere (often the artist retains the rights, or the rights are transferred to the estate or an artist’s rights society). It’s a very weird fact about the art market – you can be given the physical thing, but you can be prohibited from doing certain things to it.
For the past few years, as part of SF MOMA’s digitization and Collections Online efforts, they’ve had a staff member dedicated to tracking down the rightsholders and asking permission to put a photograph of their work on the website. Some artists are eager to participate, some only want small thumbnails available, and some are quite adamant against it. This is true of most museums with modern and contemporary art collections. Some museums are willing to take the risk and see what they can get away with (I can’t recall the museum at the moment, but one representative noted that their institution was putting everything up online anyway and if someone complained, they’d be happy to take it down). This is a radical shift from the way that museums have been run, which is to err on the side of caution.
Remember also that ultimately, these sorts of decisions involve the entire museum. In many larger institutions, you have a conservative administration and Board of Trustees who are very concerned with how content is disseminated. I won’t speak for SF MOMA, but if a Director and a Board have not been convinced to let some control go (over how images are released and disseminated), it does take time to change those perceptions. The staff may be completely in favor of relaxing those restrictions which are within their capacity, but without Director and Board support, that can cause other, internal issues.
December 13th, 2007 11:58
Thomas: Thanks for chiming in here, especially since your posts were one of my “targets”
I’ve replied to Seth about some of the specifics regarding museum practices and why some museums allow photography and some do not. Some other museums, like the de Young, primarily have collections with imagery which are in the public domain. Very few of the works on display in the de Young are modern or contemporary, and historically (prior to the new building), photography has always been allowed. Same goes for the Asian and the Legion of Honor (and it may be that the Fine Arts Museums of San Francisco, which operates all three of those museums, has a blanket photography permitted policy). However, temporary exhibit galleries are still generally photo-banned, depending upon the exhibit.
I think somewhere up there I described the historical reasons why museums have prohibited photography in the past. No doubt the Uffuzi and other museums with older objects cite one of those reasons (probably security concerns. Remember, this is an issue which has been going on for decades).
Regarding your comment about the Neon Museum, I couldn’t say, though I could make a guess. It is a relatively new museum. Remember that general copyright awareness has been heating up over the past decade, and some people (and some museums) have been overzealous about enforcing “some” right, despite not knowing what the law is.
December 13th, 2007 12:05
Whoops. sent too soon…
Anyway, where I was going with that is to acknowledge that some places can be wrong by trying to enforce copyright where they have no right to enforce. Others, like SF MOMA, err on the side of caution, not wishing to open themselves up to liability OR because of an historical anti-photography policy relating to the reasons I’ve described in an earlier reply.
Personally, although I don’t see it as a public right that museums must allow photography in galleries, I do believe very strongly in the concept of Radical Trust and that museums should be more willing to allow the public to use images and content as they would like to. I have many colleagues who feel the same way, but it will take some time before we can shift the entire museum field to that way of thinking.
December 19th, 2007 06:47
Having copyright and limited reproduction builds the repeat visitor community.
December 29th, 2007 03:11
Others, like SF MOMA, err on the side of caution, not wishing to open themselves up to liability OR because of an historical anti-photography policy relating to the reasons I’ve described in an earlier reply.
Disagree. Copyright law is much simpler than this. The NY MOMA has far more contemporary art than the SF MOMA. The Metropolitan Museum in NY also has far more contemporary art than the SF MOMA.
These museums have not cleared the rights on these pieces. They simply understand copyright law as it is and understand that they have no liability if someone uses an image contrary to copyright law. The SF MOMA knows this too. I suspect that their reasoning is more in line with trying to sell more books and DVDs at the gift store than anything.
Conservative or liberal interpretation of copyright law will not vary. Simply showing a copyrighted work does not open you up to liability — ever.
This is not a copyright interpretation issue.
April 28th, 2010 04:40
The widespread use of small digital ‘point-and-shoot’ cameras, with automatic flash, has recently re-awakened the old fears of damage to art by electonic flash. There have been some really silly decisions to prohibit all photography in galleries in order to avoid this supposed flash damage. I have reviewed the situation, incorporating some of the opinions of commentators in this web-page as well as others, trying to present a balanced view of photography, and flash photography in particular, in museums and galleries. The article, which is still in semi-draft form, is at:
http://people.pwf.cam.ac.uk/mhe1000/musphoto/flashphoto.htm
I would be very pleased to have informed comments and constructive criticisms about it from anyone.
Martin.