Museums’ Right to License Images in the Public Domain

by Sophia Cianfrani*

Copyright protection may be extended to original works and photographs of three-dimensional works, but courts in the United States and elsewhere have declined to extend such protection to photographs of two-dimensional works. Nonetheless, many museums erroneously claim to own the copyright to photographs of objects in their collections that are in the public domain and license these images for a profit. This Contribution argues that, rather than attempting to license these non-copyrightable photographs, museums, especially those that are 501(c)(3) nonprofits, should make their collections accessible and free to the public through an open access program, which would serve the benefit of the public and better comply with the scope of copyright law.

Copyright is a type of intellectual property that protects original works.¹ “[P]aintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works [and] plays” can all be protected by copyright.² But only some, not all, photographs have the requisite level of “originality” to warrant copyright protection. Despite courts’ consistent conclusion that photographs of two-dimensional works do not meet the criteria, many museums continue to assert copyright over photographs of objects in their collections that are in the public domain. This Contribution addresses (1) whether museums can copyright photographs of objects in the public domain, (2) whether museums can license photographs of objects in the public domain for a profit, and (3) whether museums should make their collections available online for free and unrestricted use.

First, many museum collections are composed of works of art that are in the public domain, which means that these works are not protected by intellectual property laws.³ The Copyright Term Extension Act (“CTEA”) granted works published between 1923 through 1977 a 95-year copyright term.⁴ As of January 2023, all published works created before January 1, 1928, are in the public domain.⁵ For works created after 1928, whether the work is in the public domain depends on (1) when the work was created, (2) the identity and lifespan of the author, (3) whether the work was published, and (4) whether the copyright was registered and renewed.⁶ Thus, museums lack copyright protections for any work that was created before 1928 and for any work that meets the statutory criteria above.

Museums attempt to circumvent a lack of copyright protection by photographing works in their collections and licensing the images. These museums claim to have copyright protection over images posted on their websites and often charge a licensing fee for third parties to use the photographs.⁷ The British Museum, for instance, claims on its website, “All the content on our website is protected by internationally recognised laws of copyright and intellectual property. The British Museum can decide under what terms to release the content for which we own the copyright.”⁸ The British Museum also lists separate charges for photographs of two-dimensional and three-dimensional objects on its website.⁹

However, museums often overstate their copyright protections. Although museums assert broad protections over all images shown on their website, courts have held that museums can only protect photographs of three-dimensional objects in the public domain, not two-dimensional objects. The Supreme Court in Feist Publications v. Rural Telephone Service Co. held that copyright laws only protect works, or elements thereof, that possess more than a “de minimis quantum of creativity.”¹⁰ There, the Court evaluated whether the white pages of a telephone book, which included utility subscribers’ names, towns, and telephone numbers, could be protected by copyright.¹¹ The Court held that the white pages of the telephone book did not possess more than a de minimis quantum of creativity and thus could not be protected by copyright because they were “limited to basic subscriber information and arranged alphabetically.”¹²

Applying similar logic, the District Court for the Southern District of New York held in Bridgeman Art Library v. Corel Corp. that a photograph of a two-dimensional image was neither original enough nor creative enough to warrant copyright protection.¹³ Instead, the court concluded that the photographs at issue of two-dimensional objects in the public domain were “slavish” reproductions.¹⁴

Similarly, the Tenth Circuit in Meshwerks, Inc. v. Toyota Motor Sales held that reproductions of original works are not copyrightable if the reproduction does “nothing more than accurately convey the underlying image.”¹⁵ In Meshwerks, the court evaluated whether a digital model of a Toyota could be protected by copyright. Meshwerks was subcontracted by Toyota to create two-dimensional, wire-frame depictions of Toyota’s vehicles for Toyota’s website.¹⁶ Meshwerks claimed that the contract was for a one-time use of the computerized models and that the models were protected by copyright, preventing Toyota from continuing to use these models without additional payment.¹⁷ The Tenth Circuit held that because Meshwerks’ two-dimensional, digital model did nothing more than accurately convey the image of a Toyota, it lacked originality and creativity and the digital model could not be protected by copyright.¹⁸

Underlying each decision is the principle that the purpose of copyright law is to promote science and the useful arts, which is accomplished by protecting originality and creativity.¹⁹ Simple, two-dimensional reproductions of an object or two-dimensional image are neither original nor creative.

Similar to United States doctrine, the Intellectual Property Office of the United Kingdom issued guidance that only works of an “author’s own intellectual creation” are copyrightable.²⁰ While this does not definitively exclude photographs of two-dimensional objects from copyright protection, the Intellectual Property Office explains in its 2021 Guidance that it is “unlikely that what is merely a retouched, digitised image of an older work can be considered as original.”²¹ Thus, neither the U.S. nor the U.K. standards afford copyright protection to photographs of two-dimensional objects.

However, photographs may warrant copyright protection if the subject of the photograph is a three-dimensional object. Under those circumstances the photograph requires “management of light and shade,” posing subjects, and determining the angle of a shot;²² that is, choices regarding angles, lighting, and background are more relevant when photographing a three-dimensional object. While a photograph of a two-dimensional object, like the photograph discussed in Bridgeman Art Library, is essentially an “exact reproduction[] of [a] public domain work[],”²³ there is more skill and judgment required to photograph a three-dimensional object.²⁴ Because the purpose of copyright law is to “promote the progress of sciences and useful arts”²⁵ by protecting original and creative expressions, photographs of three-dimensional objects can be protected by copyright because originality and creativity are required to capture the image.²⁶

However, photographs of three-dimensional objects are not inherently subject to copyright protections. Section 107 of the United States Copyright Act requires that courts consider four “fair use” factors to determine whether a creation is sufficiently transformative to be subject to copyright protections:

(1) [T]he purpose and character of the use, . . . (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.²⁷

Copyright cases are highly fact-specific, and the fair use doctrine not only permits but requires “courts to avoid rigid application of the copyright statute when . . . it would stifle the very creativity which that law is designed to foster.”²⁸ Accordingly, a photograph of a three-dimensional object must satisfy the fair use analysis to be protected by copyright laws.

Thus, current doctrine does not support museums’ claims of copyright protection over reproductions of (1) two-dimensional works or (2) three-dimensional works absent a finding of fair use. Although museums likely exaggerate their copyright protection by licensing photographs of images in the public domain, they are rarely held accountable for this exaggeration. Section 506(c) of Title 17 of the United States Code provides that “[a]ny person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false . . . shall be fined not more than $2,500.”²⁹ Museums are unlikely to be held liable for violations of § 506(c) for two reasons. First, plaintiffs have little to gain in a successful lawsuit, except to avoid an often-modest licensing fee, and the fine for the museum is minimal and capped at $2,500;³⁰ therefore, complaints are unlikely to be made. Second, plaintiffs need to prove not only that the museum was aware that the stated copyright protection was fraudulent, but that the museum exaggerated copyright protection for the purpose of committing fraud, and not another conceivable reason.³¹ Violation of Section 506(c) requires willfulness, defined as “a ‘voluntary, intentional violation of a legal duty.’”³² Proof of fraudulent intent is unlikely because there are multiple reasons that museums would exaggerate copyright protection, including to make a profit, receive credit for the museum’s work, maintain a good reputation, or to comply with donor restrictions.³³

Despite the dearth of private enforcement, not all museums push past the boundaries of copyright protections. Many museums have opened their collections to the public through open access initiatives. For example, the Metropolitan Museum of Art (“Met”) has made images of 492,000 public domain artworks available for free and unrestricted use.³⁴ Similarly, the Smithsonian has made over 4,500,000 images accessible to the public.³⁵ Despite this trend toward free, unrestricted public use of museums’ collections, some museums still exaggerate copyright protection of images in their collections and charge substantial licensing fees.

While museums likely are not criminally liable for this exaggeration, as explained above, many museums are tax-exempt, public charities that have a duty to serve the public interest.³⁶ On one hand, profit from licensing benefits the public by funding the museum, keeping the institution open to the public, and potentially even lowering cost of attendance. Indeed, not all museums can afford open access programs, and copyright scholar Kenneth D. Crews describes income from licensing as an “essential” form of income.³⁷ Licensing allows museums to profit from selling digital images online and retaining exclusive rights to create commercial products.³⁸ This source of revenue is especially important given museums’ financial struggles in the aftermath of the Covid-19 pandemic, during which museum attendance dropped enormously. Thus, licensing revenues may be crucial. According to Sotheby’s Institute of Art, earned income from activities such as licensing may account for forty percent of a museum’s income.³⁹ Exposing deficiencies in museums’ copyright protection may decrease this earned income. Further, overstating copyright to comply with donor restrictions benefits the public by allowing the museum to accept more objects from donors, which expands the museum’s collection.

On the other hand, museums that provide unrestricted access to their works to the public may receive increased financial support by third parties, which could offset losses from discontinuing licensing. The Met for example receives support from Bloomberg Philanthropies and partners with a number of other entities.⁴⁰ Given public museums’ duty to serve the public and the potential financial support that could be gained from providing unrestricted access to online collections, museums should stop licensing photographs of images in their collections for a profit. Alternatively, museums could (1) request, but not require, a donation in exchange for an image or (2) protect the image on the website with a watermark.⁴¹

Ultimately, many objects in museums’ collections are not protected by copyright because the objects are in the public domain. Museums can retain copyright protection to images of three-dimensional objects in their collections by photographing the objects, but they cannot retain copyright protection to photographs of two-dimensional objects. Rather than attempting to license these photographs, museums that are 501(c)(3) nonprofits should make their collections accessible to the public through open access programs. These programs will serve the benefit of the public and better comply with the scope of copyright law.

* Sophia Cianfrani is a J.D. Candidate (2024) at New York University School of Law. This Contribution was adapted from a final paper for the course Museums and the Law, taught by Professor Hima Gleason.

1. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (“The sine qua non of copyright is originality. . . . Original, as the term is used in copyright, means only that the work was independently created by the author . . . and that it possesses at least some minimal degree of creativity.” (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990)); see also What is Copyright?, U.S. Copyright Office, https://www.copyright.gov/what-is-copyright/ (last visited Aug. 28, 2023).

2. U.S. Copyright Office, supra note 1.

3. 17 U.S.C. § 303(a) (prescribing the copyright term for works “not . . . in the public domain”); see also Welcome to the Public Domain, Stanford Libraries, https://fairuse.stanford.edu/overview/public-domain/welcome/ (last visited Aug. 28, 2023).

4. See Eldred v. Ashcroft, 537 U.S. 186, 196 (2003) (“For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the [copyright] term to 95 years from publication.” (citing 17 U.S.C. §§ 304(a), (b))); H.R. Rep. No. 105-452, pt. 1, at 2 (1998).

5. See Copyright Services: Copyright Term and the Public Domain, Cornell University, https://guides.library.cornell.edu/copyright/publicdomain (last visited Aug. 28, 2023). A limited number of works published internationally and in languages other than English are exceptions, subject to certain special rules.

6. See generally 17 U.S.C. § 302 (prescribing the duration of copyright for works based on factors including the date of creation; identity and lifespan of the author; and publication, registration, and renewal status of the work).

7. For example, the Frick Collection charges $300–$500 for a one-time, commercial, color reproduction of its art. Schedule of Fees for Reproduction of Images of Objects, The Frick Collection, https://www.frick.org/about/copyright/fees (last visited Aug. 28, 2023).

8. Copyright and Permissions, British Museum, https://www.britishmuseum.org/terms-use/copyright-and-permissions (last visited Aug. 28, 2023).

9. See Photography and Digital Imaging Services, The British Museum, https://www.bmimages.com/pdfs/new-photography-pricing-sheet.pdf (last visited Aug. 28, 2023). Photographs of three-dimensional objects are £85, and photos of two-dimensional objects cost approximately £60. Id.

10. Feist Publ’ns, 499 U.S. at 363 (1991).

11. Id. at 342.

12. Id. at 363.

13. Bridgeman Art Libr., Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 199 (S.D.N.Y. 1999) (“[T]he point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.”).

14. Id. at 197.

15. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1267 (10th Cir. 2008) (quoting Mary Campbell Wojcik, The Antithesis of Originality: Bridgeman, Images Licensors, and the Public Domain, 30 Hastings Comm. & Ent. L.J. 257, 267 (2008)).

16. Meshwerks, Inc., 528 F.3d at 1260.

17. Id. at 1261.

18. Id. at 1267.

19. U.S. Const. art. I, § 8, cl. 8; 17 U.S.C. § 102(a).

20. Copyright notice: digital images, photographs and the internet, The Intellectual Property Office of the United Kingdom (Jan. 4, 2021), https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet.

21. Id.

22. See Bridgeman Art Libr., 36 F. Supp. 2d at 196, 198–99.

23. Id. at 199.

24. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884) (holding that a photograph of Oscar Wilde, which required the photographer to determine an angle, lighting, and shading, was an original work of art and could be protected by copyright).

25. U.S. Const. art. I, § 8, cl. 8.

26. See Copyright Basics, United States Patent and Trademark Office, https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics (last visited Aug. 28, 2023).

27. 17 U.S.C. § 107.

28. Stewart v. Abend, 495 U.S. 207, 236 (1990) (quoting Iowa State Univ. Researching Found., Inc. v. Am. Broad., Cos., 621 F.2d 57, 60 (2d Cir. 1980)); see also A Tale of Two Seusses and Argued Fair Uses: The Fact-Specific Nature of Copyright Fair Use, Baker Botts (Jul. 2019), https://www.bakerbotts.com/thought-leadership/publications/2019/july/a-tale-of-two-seusses-and-argued-fair-uses-the-fact-specific-nature-of-copyright-fair-use.

29. 17 U.S.C. § 506(c).

30. Id.

31. Id.

32. United States v. Liu, 731 F.3d 982, 990 (9th Cir. 2013) (quoting Cheek v. United States, 498 U.S. 192, 201 (1991)).

33. See Kenneth D. Crews, Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching, 22 Fordham Intell. Prop., Media, & Ent. L.J. 795, 816 (2012) (explaining the reasons a museum may assert copyright protection in this context).

34. Open Access at the Met, The Met, https://www.metmuseum.org/about-the-met/policies-and-documents/open-access (last visited Aug. 28, 2023).

35. Smithsonian Open Access, Smithsonian, https://www.si.edu/openaccess (last visited Aug. 28, 2023).

36. See Dep’t of the Treasury, Internal Revenue Serv., Pub. No. 4221-PC, Compliance Guide for 501(c)(3) Tax-Exempt Organizations (2018) (“A public charity is prohibited from allowing more than an insubstantial accrual of private benefit to individuals or organizations. This restriction is to ensure that a tax-exempt organization serves a public interest, not a private one.”).

37. Crews, supra note 33, at 813.

38. Id.

39. The Business Model of the Nonprofit Museum, Sotheby’s Institute (Jan. 9, 2018), https://www.sothebysinstitute.com/news-and-events/news/the-business-model-of-the-nonprofit-museum.

40. Open Access at the Met, The Met, https://www.metmuseum.org/about-the-met/policies-and-documents/open-access (listing Azure, Creative Commons, Dailymotion, Flipgrid, Google Arts & Culture, Kaggle, Microsoft, MIT, Pinterest, Spotify, Urban Archive, WeChat, Wikimedia Foundation, and YouTube as financial supporters of The Met).

41. While adding a watermark to a photo will not prevent a museum’s image from being shared online, a watermark would notify viewers of the image that the museum captured the photograph.