Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 7, 2018

McCutcheon on Copyrighting Culture: Photography and the Public Domain @UWALawSchool

Jani McCutcheon, University of Western Australia Law School, is publishing Copyrighting Culture: Photography and the Public Domain in Photography and Culture (forthcoming). Here is the abstract.

This article is inspired by the New York Metropolitan Museum of Art’s recent announcement that it will make 375,000 high-resolution photographs of its public domain artworks available without restriction, waiving any copyright it may have in the photographs. The announcement prompts reflection on the intersection between the photograph, copyright, the practices of cultural institutions, and the dissemination of cultural goods. The article notes how the photograph is an essential fulcrum in the contemporary dissemination of culture, and how this can be chilled by control over the photograph through copyright, but also through contract and the physical possession of photography’s ephemera. This leads to tensions between the property interests of cultural institutions and the public interest in accessing cultural artifacts through the medium of the photograph. The article probes the copyright status of photographs of public domain works, and explains how different courts have navigated the issue. It concludes that photographs of public domain artworks lack the originality essential to copyright subsistence, destabilizing the foundations of cultural institutions’ licensing models and public perceptions of property in photographic surrogates of public domain paintings. To capitalize on the socio-cultural benefits of the photograph as a mechanism of cultural dissemination, more cultural institutions must emulate the Met, and dispel the illusion of private property rights in the public domain.

The full text is not available for download from SSRN.

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