Getting An Art Work Out of the Public Domain

© Joshua J. Kaufman 1998

When is an artwork that is in the public domain not in the public domain? The "right answer" depends upon whether or not you own in the work. Copyright law provides that a copyright lasts for the life of the creative artists plus 50 years (Congress is now considering a bill which will extend it up to life plus 70 years -- the same term of copyright which is found in Europe) during which time the artist and his/her heirs get the exclusive right to exploit the work. After the term of copyright has expired the artist’s heirs lose their rights and the work enters in the public domain, it then belongs to all of us and anyone can copy it or make derivative works of it - at least that is the theory. Also if an American artist published (offered copies for sale) an artwork without a copyright notice before March 1, 1989, they lost rights to it and it entered the public domain (under the GATT Treaty, foreign nationals got theirs back). If one owns an artwork in which is in the public domain and does not allow anyone with a camera near the work, then even though it is in the public domain it is not susceptible to being copied. Denying access and photographing artwork can do more than keep copies from being circulated. The owner of the artwork who has photographed the work can claim copyright ownership in the photograph, so that anyone who reproduces in the public domain work based upon the newly created photograph is violating their copyright. That’s why you see copyright in the photograph notice on Public Domain works.

Generally speaking a photograph is copyrightable so at least on the surface, this method of reclaiming copyright in Public Domain works seems to have has merit. It is certainly the position taken by most museums around the world. If you go to a museum gift shop and purchase a slide, poster, postcard or any other item they will all have a copyright notices on them in the museums’ name. The museum will claim that it is illegal to reproduce then Public Domain works based not on rights in the Public Domain work but on the "protected new photographic work". This argument certainly flies in the face of the public policy behind free access to works in the public domain. There are a number of cases in which judges have held that, "the slavish reproduction of a painting" by a photographer does not to contain sufficient originality in order for the photograph to obtain copyright status. Copyright law requires a minimum level of creativity to be present in a work before copyright vests. These rulings do not contract the basic concept of the copyrightability of a photograph but find a method by which they do not to undermine the tenet of copyrights vesting in photographs while at the same time upholding the principal that once a work in is in the public domain it is forever in the public domain and available for use by all. And I can tell you that the lawyers in our office can not come to a consensus on this issue. Muddy water!

With the explosion of the art licensing market there is great pressure to attempt to recapture rights in works which have entered the public domain. This tendency will only grow. Many creative theories and techniques will evolve as holders of artworks in the Public Domain try to capitalize on their financial potential. This issue is far from being decided and will prove an interesting battleground between the forces of public access and those who wish to exploit the artworks which they own or control.