When Art Goes Online
California Lawyer

When Art Goes Online

December 2013

Illustration by J.F. Podevin

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In the early days of the Internet, the notion of legally protected artwork whizzing from computer to computer through unwieldy virtual channels made museum types nervous. Wouldn't pieces be pirated if just anyone had access to them? Wouldn't that ruin the museum experience? Was this the end of copyright as we knew it?

Those initial worries have subsided and are giving way to the idea that the Internet can be a powerful tool for sharing art while remaining respectful of copyrights and licenses.

"This is a really remarkable development," says Covington & Burling attorney Simon J. Frankel, who does copyright and trademark litigation. "Before, the question at museums usually was, 'How can we protect our artwork?' Now, more often, it's, 'How can we disseminate it in a way that is appropriate?' "

Viewers' experience of visual art is indeed shifting, now that exhibitions can be posted online - often including a variety of interactive elements - and now that museums publicize their exhibits using social media. Courts are helping redefine the essence of art as they change the way copyrights protect artwork. And many California museums have hired intellectual property lawyers to help them navigate the world of online sharing.

In a landmark ruling last spring, the Second U.S. Circuit Court of Appeals rejected the claims of photographer Richard Prince, whose pictures had been repurposed by Patrick Cariou (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). Cariou sold the resulting new works for millions of dollars. In the art world, this was the biggest fair use decision since Blanch v. Koons (467 F.3d 244 (2d Cir. 2006)), in which the court ruled Jeff Koons didn't violate copyrights by including another artist's photo in one of his collages.

The J. Paul Getty Museum in Los Angeles is at the forefront of sharing with its growing Open Content Program. The Getty is developing an online database of images (each accompanied by metadata about its intellectual context) that can be downloaded free and used without restriction. Works in the database are either already in the public domain or under copyrights owned by the Getty. "We went after the low-hanging fruit first," says general counsel Stephen Clark, "but we plan to continue adding to the program as we digitize more images." By October, the database had 10,000 images.

The Google Art Project is similar in some ways, but bigger. Drawn from about 300 collections and visible to anyone online, it has sparked concern that it will cost museums crucial foot traffic that supports their fund-raising, community-building, and other activities - only to benefit a massive, for-profit corporation. Many California museums that participate offer only a fraction of their collections - usually work already in the public domain.

But Adine Varah, who co-teaches a course with Frankel at Stanford Law School on art and law, thinks the online and physical experiences can work in tandem. A deputy San Francisco city attorney, she represents the city's art and cultural institutions, including the de Young Museum. Varah notes that one of its copyright-protected works is in the Google Art Project: Richard Diebenkorn's 1957 painting Seawall. Seeing it in person is a singular experience, she says, but being able to zoom in on it again online and study the details deepens one's appreciation.

Willa Koerner, the San Francisco Museum of Modern Art's assistant manager of digital engagement, says the service agreements that social media sites require users to follow present an additional layer of challenge. For example, if MOMA agrees with Facebook's terms of service for posting images from its collection, it has granted Facebook "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content."

"From an IP perspective, this can feel very questionable," Koerner says.

Pressure is coming from two opposing directions, she says. "There's this expectation to share things and have open content - and especially to share on social media - but we also really want to respect the artists and their copyrights," Koerner says. "There's no standard that everyone in the museum business uses, so we're experimenting and learning and evolving."

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