Florian Schmidt-Gabain, Attorney,
Switzerland
I
was personally interested in attending this session as while I work in
exhibitions I have not had to deal with copyright clearances and requests
for a number of years. So I thought this
would be an opportunity to refresh my memory in this complex field!
Online Reproduction
The
talk kicked off with questions surrounding online reproduction. Schmidt-Gabain
prompted us to consider what, if any, permissions are required? The
answer 'there are no specific rules' and ‘usually approval is required’ BUT it
is worth knowing that 'many privileges apply'.
These include:
Ø
Catalogue privilege
Ø
News privilege.
If in
doubt over whether permissions are required or afraid to proceed without the
approval, Schmidt-Gabain suggested contacting the RMO (Rights Management
Organisation) but bear in mind they are not always neutral as they
represent the authors and artists. Interestingly, Schmidt-Gabain also
added it is worth consulting with a lawyer. If you do not have access to a
lawyer in your organisation look to see if there are other organisations where
you can share this resource, pooling together in this way can be an efficient
as well as powerful approach when organisations are experiencing similar CR law
issues, or obstacles affecting the use of images.
How to obtain photographs
Schmidt-Gabain
proceeded to the next key topic of options for when obtaining photographs, for
which there are two main options:
Ø
Obtain an existing photograph
Ø
New photos possibly taken by the museum.
Obtaining
an existing photo usually involves payment for the file and does not
require obtaining the right, unless there is some protection over the photo.
Obtaining a new photo may involve hiring a photographer; Schmidt-Gabain stressed
a contract with the photographer should be set up so that the museum becomes
the owner of All the rights.
Obtaining permissions
Rights
to an image can normally be obtained through the artist or RMO. If an
artist is represented by an RMO the artist has lost their right to provide
approval. When working with a photographer, Schmidt-Gabain posed the question
of whether the photographer held their own copyright and responded to this with
the following points:
>
Photographs for reproduction purposes (Pfrp) usually are not fully protected
(2D never, 3D seldom)
>
Some countries have a 'mini protection' for Pfrp (for instance Germany)
>
When Pfrp is (fully or mini) protected approval from the artist and
photographer is required.
Consequences of a work being protected
Where a
work is protected, the author holds the exclusive right to decide whether to
permit the work to be shown. This right also bears on the freedom to
change the work.
Schmidt-Gabain elaborated
with the example of Damien’s Hirst’s A Thousand Years, 1990. The
well known work comprises of cows head, blood, flies and maggots all
encased. Schmidt-Gabain suggested
that if an alternation such as swapping the cows head for a pigs head for
instance, then such alternation to the work would require approval by the
artist / the artist’s estate.
Another
interesting example was the Niki de Saint Phalle Estate. The Estate stipulated
that with the restoration of this artist works should only be carried out by
their approved conservator to ensure complete likeness.
Schmidt-Gabain
also briefly touched upon catalogue reproduction, with the principle
that reproductions for the catalogue require approval, if protected. Adding in Switzerland there exists a special
catalogue exemption.
At the
end of this insightful presentation we were reminded on the key points to
consider when working with a reproduction or looking to obtain on:
> Is CR law relevant?
- only when an artwork is protected.
Conditions of protection
1. Time: artist alive or not dead
for more than 70 years
2. Intellectual creation
3. Individual character
By Sam Cox,
Tate
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