Museums hold the art treasures of world in their collections. Many of these treasures are in the public domain. But despite the fact that these works should be freely accessible to and usable by the public, museums have prevented that from happening by limiting access to high resolution images. Licensing quality images of public domain work has been a business model in the art world since the invention of the camera. That model is beginning to change as innovative museums and galleries offer open access images.
It used to be that if you wanted to write a book about Vincent van Gogh (1853-1890), for example, whose works have been in the public domain since at least 1960, you could describe his work but you couldn't reproduce it without licensing the images from the institutions in possession of it. A scholarly or coffee table book on Vincent without reproductions of his work would be a difficult task and probably unsatisfying for the reader. Scholars have been negotiating license fees with institutions or their rights management companies for years in order to share their wisdom with the rest of us. Hence the high price of those books. It makes me wonder how many books haven't been written because of the cost of the licenses.
The work you may want to write about or use in another way is in the public domain but physical access to it is controlled by the museum. Many museums (most, perhaps all) do not allow flash photography. This is understandable especially given the impermanence, or fugitive nature, of materials or pigments in original art. Simply put, some of the world's most brilliant masterpieces have changed color or faded away because of environmental and lighting conditions. The flashing bulbs of a thousand or more tourists a day will do the work no good. Not only that, but taking a high quality reproductive photo of a piece of art hanging on a wall in a museum requires sophisticated equipment and professional knowledge. A cell phone just isn't going produce an image suitable for a website let alone a print publication no matter how wonderful Apple and Samsung say their cameras are.
But times are changing, at least in the United States. One-by-one, creative thinking museums are releasing high resolution images of the works in their collections. With no strings attached. These are open access museums.
Creative Commons Zero ~ CC0
Creative Commons Zero, or CC0, is a public domain dedication tool that, when applied to a work or creative content, permanently relinquishes all copyright and related rights that an owner may have in a work. CC0 works may be used free-of-charge for both commercial and non-commercial purposes without prior consent or permission, including copying, modification, distribution or performance. The language from the license reads:
The public can reliably and without fear of later claims of infringement build upon, modify, incorporate in other works, reuse and redistribute as freely as possible in any form whatsoever and for any purposes, including without limitation commercial purposes.
"Related rights" include moral rights, rights of publicity and privacy, rights protecting against unfair competition, and especially, with respect to museums, contract rights. Every time you buy a ticket to a museum or browse their website, you agree to their terms and conditions. With CC0, they've given those conditions up and adopted an open access business model.
Works that have been designated CC0 by their owners, combined with the release of the high resolution images, can now be used to make new art, or quilts, or books covers, or calendars, or note cards, or anything you can think of. And you can sell what you make without limitation.
Copyright Protection for Images of Public Domain Art
In the United States, reproduction photographs of paintings and two-dimensional art are not protected by copyright. If the art is in the public domain, then a photograph of the art can be used freely. How this came to be the current law in the US is an interesting story of the risks inherent in ill-advised litigation. I'll make it short.
The case is Bridgeman Art Library v. Corel Corporation. Bridgeman is a United Kingdom-based company that acquires photographs of public domain works of art and then licenses use of high quality reproductions. Bridgeman's business model was based on providing potential customers with a CD-ROM of low-resolution images as a catalog to entice them to license use of high resolution color transparencies.
Corel Corporation is a Canadian software company specializing in graphics processing. It is known for producing the software CorelDRAW. Back in the 1990's, Corel sold CD-ROMs containing images of public domain paintings by European artists. Over 120 of the images on Corel's CDs were works of art that were also in Bridgeman's library of photographic images.
Bridgeman brought an infringement suit against Corel in New York. The court applied British law and held that because Bridgeman's images were "copied from the underlying works without any . . . addition, alteration, or transformation," they were not copyrightable since they lacked originality. Specifically, the court decided that 'slavish copies' of public domain works of art have "no spark of originality." Originality is a prerequisite for copyrightability. Bridgeman lost the case.
Bridgeman chose not to appeal the ruling perhaps hoping to limit the impact of the adverse outcome. The holding in Bridgeman has gone unchallenged in the United States and is effectively the law of the land even though the decision comes from a single district court.
In the aftermath of Bridgeman, museums and galleries resorted to other ways to secure the exclusive monetization of their collections. Those methods of control are by contract – either in the fine print on the back of an admission ticket or in the terms and conditions of a website. But beginning in the 2010's, museums in the United States started designating the public domain pieces in their collections CC0 and giving away high quality images of the work.
Neither the law, nor the practice of CC0 designation, is the same in other countries, specifically the UK and most recently, Germany.
US Museums Embrace CC0 and Open Access Images
This is a list of museums and galleries in the United States that have adopted the open access business model. These are links to their searchable collections, their Open Access policies, and a few notes about how to use the sites (click on the images to enlarge them, they're beautiful):
- Art Institute of Chicago (select show filters, scroll down and select public domain). When you click on an open access image, the CC0 public domain designation appears beneath the image on the left side of your screen. A download button appears on the right side of the screen. Those images that are not open access will not have the CC0 designation or a download button. The Institute does not give you a convenient way to capture the meta data of the image you want to work with. The Institute does request attribution when you use their Open Access images.
- The Cleveland Museum of Art (enter your search term, select open access). After selecting open access, the thumbnails of all open access images appear with the CC0 designation beneath them. Select an image to download by clicking on the thumbnail and a download button will appear to the right of the image. The image is delivered in a zip file along with a text file with the meta data that can be used to cite the work. The Museum asks that you consider citing the source as explained in its Open Access policy.
- Indianapolis Museum of Art (the site is called Newfields) (search collection). There's no way to filter the search to extract public domain images only. The metadata for each image appears under its thumbnail after you enter a search term. The metadata includes the date of death of the artist, if known. Remember that in order for the work to be in the public domain, the artist must have died more than 70 years ago. Once you select an image you are interested in, if the work is in the public domain and available for unrestricted use, a download button appears to the right of the image. Before you can download the JPEG, you have to advise the Museum of your intended use. If you select commercial use, you are then required to describe the project for which you would like to use the image in detail. The Museum asks you to credit the source of the image.
- J. Paul Getty Museum (enter your search term and add filters) This link is for searching all the public domain images they have available. Click on the title of the work for its complete meta data and provenance. The download button is located beneath the full image. The download is offered in various sizes including JPEG files large enough for print publication. The meta data is provided in a nice text block ready for copying. You will be asked two brief questions about how you intend to use the image. The Museum asks that you credit Getty's Open Content Program.
- The Metropolitan Museum of Art (check open access). Enter your search term. Two things struck me about the Met's open access interface. The first is that there are multiple options for downloading images, but they don't tell what the differences are. For instance, if you look at the web page for the image I've chosen, there are three download choices for the same image. They all have different levels of color saturation. But why? Also, there's no obvious way to capture the meta data which is a shame. The Met launched its Open Access policy in February 2017. It does not ask for attribution when you use an Open Access image.
- National Gallery of Art (click on advanced search below the search bar, then select open access and run your search). The search results return a page of thumbnail images. The thumbnail opens up to a single image page with complete meta data. You can download images suitable for print publication using the download icon that has two bars beneath it. Or you can choose low resolution images (the download icon with one bar beneath it); they are referred to as "lecture images." The meta data comes bundled with the image download which is nice. The caption automatically populates when the image is uploaded in WordPress. The Gallery's Open Access policy asks users to give credit, but doesn't add the credit automatically to the caption which is interesting.
This is not an exhaustive list. It includes only museums and galleries in the United States that permit unrestricted commercial use of the images. If you know of other museums, galleries, or collections that are open access, drop the information in the comments and I'll add to this list.
I know of two museums outside of the United States that offer Open Access images: The Rijksmuseum and the Museum of New Zealand. But for the most part, Open Access and CC0 designations with unrestricted distribution of high resolution images seems to be an American trend.
UK Museums Embrace the Contract Ties that Bind
The outcome of Bridgeman upset those in control of British museums. Perhaps they disliked having an upstart
colonial American court opining on British copyright law. The British Museums Copyright Group hired a renowned copyright barrister who decried the Bridgeman opinion in an attempt to bolster the licensing business model of UK museums.
The British Museum continues to claim copyright ownership in the images of its collection. It uses a Creative Commons license designation that does not permit the commercial use of its images.
Open access images will find their way onto the websites of UK museums, eventually. A circular published by the UK's Intellectual Property Office in 2015 stated:
. . . according to the Court of Justice of the European Union which has effect in UK law [at least until we see what happens with Brexit], copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.
In November 2017, a group of prominent British art historians signed a petition to abolish the fees charged by the UK’s national museums to reproduce images of historic paintings, prints and drawings. The petition was published in The Times.
We'll have to wait and see. In the meantime, I don't recommend that you use images from British Museums other than for personal study.
My Little Joke
The featured image in this post is a photo of the British Museum designated CC0 by the Art Institute of Chicago. This post is about innovative museums that share their collections with open access images. It amuses me to illustrate it with a photo of a staunch anti-open access institution.
What is the policy at your favorite museum? Are high resolution images available for unrestricted use?