How to Get the Mona Lisa in Your Home Without Breaking the Law: Painting a Picture of Copyright Issues with Digitally Accessible Museum Collections

Journal of Intellectual Property Law Volume 18 | Issue 2 Article 11 March 2011 How to Get the Mona Lisa in Your Home Without Breaking the Law: Painting a Picture of Copyright Issues with Digitally Accessible Museum Collections Lara Ortega Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Lara Ortega, How to Get the Mona Lisa in Your Home Without Breaking the Law: Painting a Picture of Copyright Issues with Digitally Accessible Museum Collections, 18 J. Intell. Prop. L. 567 (2011). Available at: https://digitalcommons.law.uga.edu/jipl/vol18/iss2/11 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Ortega: How to Get the Mona Lisa in Your Home Without Breaking the Law: P NOTES HOW TO GET THE MONA LISA IN YOUR HOME WITHOUT BREAKING THE LAW: PAINTING A PICTURE OF COPYRIGHT ISSUES WITH DIGITALLY ACCESSIBLE MUSEUM COLLECTIONS Lara Ortega* TABLE OF CONTENTS ................................ .................. 569 1. INTRODUCTION II. ............ 570 BACKGROUND .................................... .................. 570 A. FUNDAMENTALS OF MUSEUM OPERATION.... ........ 573 B. HISTORY OF U.S. COPYRIGHT LAW: 1700s-1976 ....... ............. 574 C. THE COPYRIGHT ACT OF 1976 ................ ....... 575 D. FAIR USE UNDER THE COPYRIGHT ACT............... 577 .................................... E. PUBLIC DOMAIN WORKS.. ....... 577 F. DIGITAL MILLENNIUM COPYRIGHT ACT ............. G. CURRENT METHODS OF PROTECTION FOR DIGITALLY ACCESSED MUSEUM EXHIBITS IN THE UNITED STATES................ 579 ........ 580 H. RELEVANT CASE LAW IN THE UNITED STATES ....... 580 I. AUSTRALIAN COPYRIGHT LAW......................... III. .......... .................................... ANALYSIS A. ANALYSIS OF CURRENT LEGAL FRAMEWORK.... ........... 582 ............ 582 * J.D. Candidate 2012, University of Georgia School of Law. The author would like to thank her fellow Journal members for all of their help in creating and editing this Note, as well as her family and friends for their constant encouragement, love, and support. 567 Published by Digital Commons @ Georgia Law, 2011 1 Journal of Intellectual Property Law, Vol. 18, Iss. 2 [2011], Art. 11 J. INTELL PROP.L 568 B. IV. [Vol. 18:567 585 1. Trademark Treatment of Exclusive Use of Images................. 585 586 ................................. 2. Reform ofDMCA . .... ............................. 589 3. Flexible Dealing Option ......... PROPOSED SOLUTIONS ................................... CONCLUSION https://digitalcommons.law.uga.edu/jipl/vol18/iss2/11 .................................................... 592 2 Ortega: How to Get the Mona Lisa in Your Home Without Breaking the Law: P 2011] COPYRIGHT AND DIGITAL MUSEUM COLLECTIONS 569 I. INTRODUCTION The availability of digital media on the internet is proving to be a viable way for museums to disseminate their collections to a wide audience.' Because of the increasing availability of digitally accessible works, museum attendance via the internet is rapidly increasing, with some museums reporting that they have more visitors online than in the actual museum. 2 Given this increased exposure, museums and the creators of the works have an increasingly greater interest in maintaining some level of control over the use of the works by the general public than in the past.3 4 Current United States law is somewhat confusing on this subject. The relevant copyright law does not seem to clearly define the rights of those who access artistic images online, leaving it in the hands of museums to articulate proper uses through licensing agreements.5 While bluntly effective, licensing agreements are often over-restrictive, and prohibit some potentially beneficial uses of works.6 Additionally, issues arise when the works being protected are already in the public domain.7 Case law further muddles the issue by leaving little room for museums to 8 create reproductions of public domain works to use for their financial gain. Often, famous works that are in the public domain would make ideal images for 9 posters, coffee mugs, and similar items for the museum to sell as merchandise. While these works are often used by museums for such purposes, the decision in BridgemanArt Library v. Corel Corp. has restricted such uses.10 The availability of these works online has become an essential tool to the "creation, study, and teaching of art and art history."" Digital images are also used as sources of creative inspiration and enjoyment for the public at large.12 I Kenneth D. Crews & Melissa A. Brown, Control ofMuseum Art Images: The Reach and Limits of Copyrghts and Licensing, 2 (Jan. 20, 2010) (prepared as a preliminary study as part of a larger project, on file with Columbia University). 2 MICHAEL S. SHAPIRO, INTERNATIONAL INTELLECTUAL PROPERTY INSTITUTE, MUSEUMS AND THE DIGITAL FUTURE 1, http://www.wipo.int/export/sites/www/tk/en/folklore/creative herit age/docs/iipi.pdf. 3 Id. at 4. 4 Dan L. Burk, Legal and Technical Standards in Digital Rghts Management Technology, 74 FORDHAM L. REv. 537-39 (2005); see also Christopher S. Brown, Comment, Copyleft, the Disguised Cop rght: Why Lgislative Copyright Reform is Superior to Copyleft Licenses, 78 UMKC L. REv. 749, 750 (2010). 5 Crews & Brown, supra note 1, at 2. 6 Id; see also Burk, supra note 4, at 544; Robin J. Allan, Comment, After Bridgeman: Copyright, Museums, and PublicDomain Works ofArt, 155 U. PA. L. REv. 961, 963 (2007). 7 Crews & Brown, supra note 1, at 5. 8 Allan, supra note 6, at 963. 9 Id. at 962-63. 10 36 F. Supp. 2d 191 (S.D.N.Y. 1999); see also Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998). 11 Crews & Brown, supra note 1, at 2. 12 Id Published by Digital Commons @ Georgia Law, 2011 3 Journal of Intellectual Property Law, Vol. 18, Iss. 2 [2011], Art. 11 J. INTELL PROP.L 570 [Vol. 18:567 As the public views these works online, they are able to gain access to cultural works that were previously unavailable to them.' 3 Thus, museums have a great interest in providing free digital access to their collections while still defining allowable and prohibited uses, through either copyright law or licensing agreements.14 Current law in the United States makes it difficult for museums to get the type of protection that would be ideal for digitally accessible works. 5 Other countries, such as Australia, have attempted to remedy similar issues in their copyright law.' 6 Much like.the efforts by the United States, questions linger about how best to remedy these legal issues in a uniform and predictable way, so that museums and those who are digitally access (...truncated)