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!
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.
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 tochange 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