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.

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.

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.

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.

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?