By Kelsey Clifford
Art is a consistent escape from reality. When COVID-19 emerged and infiltrated each of our daily lives, physical art became all but inaccessible. Until, that is, art became more accessible than ever. In April 2020, a New York Times article reported that “[a]s the coronavirus pandemic stretches into yet another month, keeping arts institutions closed across the globe, museums’ websites are now posting traffic numbers that were once unimaginable.” While the global art market dropped by about $14 billion over 2020 due to the pandemic, “total sales of the online art and antiques market doubled in 2020 compared to the previous year.” This shift occurred for a simple reason, available technology aided a transformation in how art could be experienced and purchased. Galleries found new ways to market and sell artworks online, and museums made virtual and immersive experiences available for remote viewing. However, as technology continues to expand access to art significantly, those digitizing art access need to be vigilant about intellectual property rights. With great access comes great responsibility.
TRANSFORMING HOW ART IS VIEWED
The mission of most museums is simple. “Public museums are committed to spreading knowledge and to making their collections accessible,” and as stay-at-home orders tested this commitment, museums around the world rose to the challenge. By March 2020, “2,500 world-class museums and galleries” offered virtual tours and online collections. For example, the Louvre put its entire collection online. When travel was made impossible, headlines read, Can’t Get to Paris? The Louvre Now Has 484,000 Works Online, Free to View. Art museums have provided online catalogs of their collections for some time. However, as art institutions’ doors remained closed, new efforts were employed to “replicate the physical experience of walking through an exhibition.” For instance, the digitization of the Louvre’s collection included an interactive map allowing patrons to move through each room, simulating the experience of walking through the museum. An experience like this would not be possible without augmented reality (AR) and virtual reality (VR) technologies.
Before the pandemic, art institutions utilized AR and VR technologies within their walls. At that time, AR has been used to “provide context about works on display or to add dynamic, interactive elements to their visitor tours.” In 2019, the Louvre launched Mona Lisa: Beyond the Glass, a VR experience available in person and for download, allowing visitors to experience the painting in an entirely new way. However, “many museums were slow adopters,” and COVID-19 rapidly accelerated the use of these tools.
Museums and galleries making use of this technology stepped into a new role: the producer or publisher. Instead of simply displaying artworks, they are now involved in creating virtual tours and exhibitions. According to New York attorney Amelia Brankov, “[l]arger museums and galleries have become accustomed to managing the intellectual property rights associated with a variety of online media.” On the opposite end, “[s]maller entities . . . may lack the necessary training and resources to navigate the various rights issues, all at [a] time when many players in the art world are struggling economically.” The creation of new online media, such as virtual programs, is naturally accompanied by new intellectual property considerations. For example, novel considerations include protecting the work museums and galleries author and display and ensuring recent digital efforts do not infringe copyrighted works.
Potentially Infringing Derivative Works?
Federal law grants copyright owners several exclusive rights. Specifically, the Copyright Act of 1976 (the “Act”) vests the right to reproduce a work, prepare derivative works, and distribute copies solely with the owner of a copyright. Many objects in museum or gallery collections are still protected by copyright. A museum or gallery’s physical ownership of a work does not equate to ownership of the copyrights, as the two confer different privileges. “Ownership of the work itself allow[s] you to display the art, whilst copyright ownership allows an artist to retain all rights to print, copy and distribute its work, even if the original is sold.” Therefore, copyright issues remain at the forefront of museum and gallery practices. There is always the option of obtaining a copyright license from an artist or their estate. Further, a work may be outside the realm of copyright and in the “public domain,” thus “available for viewing and unrestricted download by the public.”
Notwithstanding these possibilities, copyrighted works in a collection cannot be freely reproduced without the rights holder’s authorization. The use of AR technology for art programming may create “novel issues with respect to derivative works.” The Act provides the owner of a copyright the exclusive right to do and authorize derivative works based on the copyrighted work. According to §101 of the Act, a derivative work is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” When an AR application “applies filters which changes the appearance of copyright works, or visually overlays and combines a copyright work with another protected work physically before a user, it creates a potentially infringing derivative work.” In the context of video games, courts have found “temporary modifications of copyright works to be infringing.” This invites the question whether museums and galleries utilizing AR technology to author digital programming can be considered creating infringing derivative works. The rights issues involved with virtual tours and exhibitions exemplify one shift brought on by recent digital efforts.
TRANSFORMING HOW ART IS BOUGHT
How does one purchase art when physically seeing the work is made impossible? A significant shift occurred in the art market to accommodate the challenges brought by the pandemic. As exhibitions and art fairs continued to be postponed and canceled for public safety reasons, buying art required additional measures. “One common technique has been the creation of online ‘viewing rooms,’ a type of marketing platform that had been used by a few gallerists prior to the pandemic.” Online viewing rooms are not just “fancy websites” with JPEGs of works accompanied by the title and text. In fact, on the gallery’s end, the process is no different from what would be done for an in-person show. A gallery obtains the physical artwork and proceeds as usual, the only difference is that “the end result doesn’t hang in a space, it lives in this online format.” “Most viewing rooms consist of large images of the works available for sale (sometimes with a price), an ‘inquire’ button that allows the viewer to email the gallery directly, and, in some cases, a click-to-purchase feature.” The size of images used in online viewing rooms may alter the copyright implications.
In displaying large, high-resolution images for primary-market sales online, galleries should ensure they clear the right to use the image with an artist or licensing agency. Fair use, “the most wide-ranging limitation on copyright protection,” generally allows the use of small, low-resolution images of copyrighted works without a license. Fair use allows the unlicensed use of copyrighted work in some circumstances to balance the desire to protect free expression. For example, the use of thumbnail images has traditionally been considered fair use “so long as the use of those images has been transformed from their original purpose.” However, “[w]hether fair use permits the display of large-scale, high-resolution images without permission is less clear . . . .” Thus, when it comes to the secondary market and galleries that are not in contact with an artist or estate, it is essential to be mindful of the potential copyrights at play, and the impact the size of an image can have on an infringing use.
Several open questions remain surrounding the widespread use of virtual mediums in the art world. Perhaps the law will become clearer now that the pandemic has forced museums and galleries’ widespread use.
Whether it be new places art can be encountered or the mediums through which art can be viewed, it is safe to say a new world of art has emerged. Beyond the intellectual property considerations that accompany displaying art through new mediums, the transformation underway in the art world is an exciting one. According to the Director of the USC Pacific Asia Museum, Bethany Montagano, when the exhibition We Are Here: Contemporary Art and Asian Voices in Los Angeles was forced online, it “democratized the exhibition and its messages, opened them up to a broader audience and made our important work much more accessible.” While making art accessible everywhere was a response to stay-at-home orders, the broader implication is in line with a general trend towards democratizing access to art.
Technology will continue to expand where and how art can be experienced. As it does, opportunities will open for new artists and viewers to participate in the art world. Creatives can explore and display art beyond the four corners of a room, viewers can become wholly immersed in their favorite paintings and experience textures and colors in new ways, and collectors can be closer to artworks they wish to purchase than ever before. Hopefully, this ongoing shift continues to enable greater access to diverse storytelling.
About the Author:
Kelsey Clifford is a second-year student at Benjamin N. Cardozo School of Law in New York City. Kelsey was the Fall 2021 Legal Intern for the Center for Art Law. She is a Staff Editor for Cardozo’s Arts & Entertainment Law Journal and a writer for Cardozo’s AELJ Blog.