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.

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  1. Bruce says:

    One reason for the photography ban in museums such as the Uffizi and Accademia (where I was blocked from taking a picture of David) is the stupidity of our fellow tourists. Those works are very sensitive to light and unfortunately most tourists seem unable to figure out how to take a picture without flash. When I was talking to the very polite Accademia guides about their policy they said that is was simpler to ban photography all together so that people would not expose the works to flash. They used to allow photography without flash but too many people were still using flash so it was easier for enforcement to not allow any photography.

  2. Thomas Hawk says:

    One reason for the photography ban in museums such as the Uffizi and Accademia (where I was blocked from taking a picture of David) is the stupidity of our fellow tourists.

    Bruce, this is sad. My 5D does not even have a flash attached to it. It is impossible for someone to take a flash photo with a 5D without buying a flash to specifically use. Even if this is the case, the museums should still make a provision to get a photo pass if you can prove that you will shoot without flash.

  3. JeffH says:

    I’ve been given the flash argument before also. I’m not sure I buy the fact that a flash will fade delicate artwork, you’d have to expose it to a LOT of flashes, but I buy this argument much more than the lame copyright argument as it at least has some technical merit. The other argument against flash is that it is quite annoying to others in the museum to be continuously flashed in the face by inconsiderate or over zealous photographers. Even hearing an SLR’s mirror slap and shutter release and rewind can be annoying in a quite museum or other quite venue. I can see how it is much easier for museums and other similar venues to just ban photography all together. Unfortunately, this has ruined it for those of us who try to be considerate of others when photographing in public places.

  4. reon_garnauld says:

    Personally I could care less about the copyright issue – people walking out of the museum with a picture of the artwork is totally fine. But – I’m actually happy cameras are not allowed along with cell phones because I actually would like to enjoy my visit to the museum (or library). People yapping and shooting away can be annoying, especially nowadays with the trigger happy armies of photographers out there. Gives us some space, at least once in a while – and keep it down. Your 5D is not a rangefinder.

  5. prophead says:

    For the record, I’m far less likely to pay to visit a museum if they ban photography. I thought it was interesting that the Crown Jewels in Denmark charge extra to get a photo pass, I was happy to pay it not to get hassled. Also interestingly the Amsterdam Historical museum allows FLASH photography after they conducted a scientific study and found that flashes were no more harmful then display and sunlight.

  6. Thomas Hawk says:

    Even hearing an SLR’s mirror slap and shutter release and rewind can be annoying in a quite museum or other quite venue. I can see how it is much easier for museums and other similar venues to just ban photography all together.

    JeffH, a far better answer would be to allow photography on certain days of the month. For instance, if camera shutter sound was really the objection, they could simply say allow photography on Fridays and then everyone would know that cameras might go off on that day. If you wanted to shoot you’d go that day, if you didn’t want to hear a camera shutter you might go a different day.

    I doubt they are really concerned with the aesthetics of shutter sounds though as much as they are simply being proprietary and trying to hoard what art they have and only make it available to those who would buy a ticket and pay admission, unfortunately even when most of the world can’t afford the travel to get to the museum to buy the ticket in the first place.

  7. Charlie Tidwell says:

    I agree with your post, however there is one thing not taken into account.
    For these copy written works – if you take a picture of them and post it to a website/blog that has advertisements (such as you have done) – you are violating copyright by using a representation of their work for commercial purposes.

  8. Thomas Hawk says:

    if you take a picture of them and post it to a website/blog that has advertisements (such as you have done) – you are violating copyright by using a representation of their work for commercial purposes.

    Charlie, this may or may not be true. The extent that this blog would fall within personal fair use vs. a business could be argued.

    Irrespective though, the museum bears no liability over any infringement which I may produce. The fear of copyright liability argument is a red herring.

  9. But the truest irony is this: Museums which decry photography for copyright issues but then run Richard Prince exhibits.

  10. Lunettes Rouges ( says:

    Copyright law varies from country to country, and indeed there is no copyright issue in the Offizi or in the Louvre. The Louvre bans photography in the most crowded rooms, e.g. where Mona Lisa is shown, and this is for comfort reasons : hords of Japanese, American and other tourists photographing themselves endlessly next to Mona Lisa and other paintings. This was indeed very irritating for the art lover.

  11. Anonymous says:

    Ah, but you’re assuming Andrew cares about anyone else’s museum experience besides his own, or that he cares that it’s the museum’s decision to permit photography or not (never mind his constant biatching about others “illegally” trying to stop him from snapping photos on the street, that rule he expects everyone else to abide by).

  12. -gary says:

    One issue that no one ever seems to consider is the owner of the artwork. A large part of some collections are on loan from individuals. If I have an original Picasso that I paid a fair chunk of change for, I might not want pictures of it showing up all over the internet in thousands of Flickr family vacation sets. It would seem to be much easier for of a no-photography museum to get collections in without having to worry about what’s going to be snapped and what’s not.

    The local museum here in Phoenix has a standing photography allowed for permanent pieces, but not for loaners or temporary collections. I found it odd to visit the Ansel Adams collection that came through town and being told that I can’t photograph it.

  13. Danno says:

    I would think that in most cases the no-photo rule is a threat to museum sales. At the Boston art museum, all the permanent works are free to photograph, but special exhibitions prohibit picture taking. They have a special sales area at the exit of the these exhibits to hawk merchandise that is derived from the exhibit. So, if you want to remember your special day of rare impressionist paintings, you have to buy that $20 calendar, or that $100 poster. It has nothing to do with copyright, but everything to do with the museum making money. And this is on top of charging an extra admission fee plus museum admission.

    There are some cases where copyright can be a factor. The Boston Art museum had an Ansel Adams exhibit which included rare original prints of his work. It was an amazing exhibit and I went 3 times. But I can easily see how allowing photography could negatively affect the sales of his works. Since the artwork itself is photography, it seems to undermine the worth of the art by allowing people to “copy” the images for free.

  14. photodad says:

    Thomas to me the bottom line is “you can’t always git what you want”

    As demonstrated in these comments your preference is an annoyance to others, and others preference is an annoyance to you.

    Yes there are a lot of dumb rules out there. My kids think my rules for them are dumb but that does not mean I do not have to a right to make them and insist that they abide by them.

    Even if I think the museum photo rule is dumb (which I do), it does not give me the right to break them on their property. Nor is it a good example to set for my children. I choose to follow the rules if nothing else to be a good example to my kids.

  15. photodad – it depends what the rules are. The Suffragettes here in the UK broke a few in their time and your kids would benefit from learning a bit about them. Admittedly, of course, photography in museums isn’t in the same league but I think sometimes rules like these are made in an unthinking manner, made because other places do the same thing. Mostly with museums in the UK, at any rate, we the public own the things in the first place so it is hard to see how copyright applies. That said, come over to the British Museum in London – you can take as many pics as you like there. 🙂

  16. Perian Sully says:

    I have a total of about .5 seconds to respond right now, but I wanted to pipe in and say “thanks” for continuing the discussion.

    One interesting piece of information I received yesterday is that MoMA may have made agreements with VAGA and other artist’s rights societies to allow photography. We weren’t sure who to contact at MoMA to confirm this, so I don’t know if this is true or not. Assuming it is, I think that might make your “red herring” a little pink 😉

    Seriously, though. You may be entirely correct that SFMOMA is just starting at shadows, but no non-profit wants to be a test-case for overzealous copyright holders.

  17. bleem says:

    I was just scolded for taking a photo of a wood statue at Bower’s Museum in Santa Ana, Calif. The statue was significantly beyond copyright protection period and was located in a large exhibit room with enormous windows and skylights. The only justification for the aggressive warning from the museo-cop is financial: my picture would diminish the motivation of others to attend the museum to view the work first-hand. That risk seems unrealistic to me.