Museums are not the Enemy and the Red Herring of Copyright Law to Prohibit Photography

Musematic � Museums are not the Enemy

Musematic has a post up responding to comments made by me as well as Cory Doctorow over at Boing Boing criticizing museums for proprietary anti-photography rules. Musematic tries to argue that a valid reason for prohibiting photography in museums exists, copyright law.

From the post:

"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."

This argument, my friends, is a red herring.

Let's discuss the copyright liability argument for a second. First off, how is it that the NY MOMA allows photography in their permanent collections but the SF MOMA does not? Is there some extra copyright liability law that exists in California but does not exist in New York? Further, how is it that contemporary art shown at both the de Young Museum in San Francisco as well as the Oakland Museum of California can be photographed while the galleries at the SF MOMA cannot?

Are the NY MOMA, de Young Museum and Oakland Museum of California simply high flying risk takers that are ripe for a copyright infringement lawsuit? Or is there something else going on here?

Museums simply have no copyright liability for allowing photography in their galleries. To assume that an entity showing work has a legal liability for copyright infringement is absurd. As long as a fair use defense can be mounted (and taking a photograph of a copyrighted painting at a museum for personal use would be considered fair use) then their is no liability to any museum for allowing photography in their galleries.

This copyright "red herring" argument is frequently cited by proponents of no photography policies. More simply put, it is not a museum's job to be the copyright police. It is their job to share with the world their collections as broadly as possible to further enrich the cultural landscape. By adopting proprietary selfish and greedy policies designed to make sure someone buys the calendar from the gift shop rather than taking a photo of their own they do society a disservice.

Many public museums take their no photography policies to an even greater extreme when arguing copyright would even be more difficult. For instance, the Uffizi in Florence doesn't allow photography and yet almost everything in their collection is hundreds of years old, well past any copyright protection that might be offered.

The Neon Museum in Las Vegas claims their mission statement to "collect, preserve, study and exhibit neon signs and associated artifacts to inspire educational and cultural enrichment for diverse members of our international community," and yet they don't allow photography of their collection.

Maybe they should rewrite their mission statement to read "for diverse *wealthy" members of our international community who have the money to fly to Las Vegas to see our collection in person."

How does restricting photography of a neon museum in Las Vegas help promote cultural enrichment of an international community? Ironically almost every sign in their collection was well in the public view prior to their "saving" the signs to hide them away in a museum where no one can photograph them.

Copyright is a red herring in the war against photography. Museums bear no copyright liability for allowing photography in their galleries. While many (NY MOMA, de Young, Oakland Musuem of California, etc.) restrict photography in their visiting shows, they all allow photography in their permanent galleries with no liability whatsoever. It's time that the SF MOMA and other museums also become more open and allow photography as well.