Copyright issues

[Gary Rosenberg]

Natural history museums that claim copyright on images of their specimens
are following the lead of art museums. However the holdings in art museums
have two major differences from those in natural history museums: 1) they
inherently have copyright protection for some period of years, because they
were made by a person; 2) they generally have high monetary value, having
been selected as the finest examples of a medium or genre; images of them
thus can be sold individually in large numbers as postcards or posters and
return thousands of dollars in income. In contrast, most objects in natural
history museums are average examples of species, and images of them usually
are sold as part of publications containing many other such images. When a
fee is charged for one-time reproduction rights to use a copyrighted image
in a book or journal it is generally around US$50-$100.

Museums do not have copyright on images of objects they own if the images
were created by someone not in their employ. They can, however, require
users to assign copyright to them as a condition of being allowed to
photograph objects and then charge for use of the image. In the case of
natural history museums, I think it is a mistake to do so, because the
specimens are held in public trust. Many items in natural history museums
were acquired through donation, with the donor expecting that the specimens
and information about them be freely accessible to qualified people. Other
items came from publicly funded research or expeditions with similar
expectations.

Another question is whether the copyright is enforceable. For a copyright
infringement suit to succeed in the United States, the plaintiff must show
damages. Damages are clear in the case of someone selling thousands of
dollars of reproductions of a Picasso painting (and the plaintiff would be
the Picasso family, not the museum holding the painting, unless the
copyright had been transferred to the museum). Damages in the case of
unauthorized reproduction of a single image of a natural history specimen
would not usually exceed the $50 to $100 normally charged for one-time use
rights, which makes it impractical to sue. Also the defendant could request
the plaintiff to prove legal ownership of a specimen collected in another
country.

Since copyright in most cases is unenforceable, the museum that claims
copyright on images of its specimens must rely on the goodwill of its users
to adhere to the policy. But it already relies on the goodwill of the same
to identify specimens in its collection, deposit type material, and loan
material for their own collections. Museums should charge only for
commercial use of their collections, not academic use. Otherwise bureacracy
eats up time and funds that could otherwise be used for research and curation.

Gary Rosenberg

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Gary Rosenberg, Ph.D.                     rosenberg at acnatsci.org
Malacology & Invertebrate Paleontology    gopher://erato.acnatsci.org
Academy of Natural Sciences               http://www.acnatsci.org
1900 Benjamin Franklin Parkway            Phone 215-299-1033
Philadelphia, PA 19103-1195 USA           Fax   215-299-1170