Why can’t I photograph art? part 2

Why can’t I photograph art?
           Why do some museums, galleries and artists object to having their artwork photographed?
           In my last entry, Why Can’t I Photograph Art, I described the event that sparked my interest in the subject of photographing artworks. I covered my thought process at the time, and described how my adolescent mind tried to figure out what reason their was for banning photography in museums and galleries. I didn’t get very far.

           It wasn’t until my University years that I discovered the real reason why artworks could not be photographed: Copyright Law
           So I now had the official, legal reason for not being allowed to photograph artworks, but this seemed strange to me. Copyright law makes sense for books, songs and movies. In these mediums, money is made by selling multiple copies of the same thing. With paintings, there are no copies; there is only one. A song can have multiple copies and be sold multiple times, but every painting is unique; it’s the only one like it in the whole world. I finally had my answer, but something about it didn’t sit right with me. Why would a one-of-a-kind object possibly need copyright protection?

           I often find the best answers or explanations to one particular problem come from an outside perspective. Thinking about how copyright applies to painting had me stumped. But after thinking about how copyright applies to music, I was able to form a clear picture of how it applies to paintings.
           With music, a song is separate from the performance. One person can write the song, while another performs it.
           Imagine that you come across a fantastic song that just happens to be 200 years old. That song would reside in the public domain, meaning that anyone can freely use it; it belongs to the world. If you were to record your own performance of that song, that performance is protected by copyright, but the actual song itself-the composition-is still in the public domain. Other people can record their own version of that same composition, but they can’t use your version, your performance. The song as a written composition is separate from the song as a recorded performance.

           That same separation exists in other art forms, although the distinction may appear more subtle. Unlike music, in other art forms the composer and performer, or in this case, the creator, are the same person. But it is important to understand that a distinction does exist between a painting as an image, and a painting as an object.
           When a painting is sold, the buyer gains possession of the object, while the artist retains ownership of the image. If you were to buy one of my paintings, it would be a violation of copyright law for you to have it photographed, then distribute postcards. However, it would be perfectly ok for me to sell postcards, posters, t-shirts, key-chains or coffee mugs with that image on it. Even though I no longer own the object, I still own the image.
           So, copyright is why I can’t photograph art. That makes sense. Except for the part where it doesn’t.

           In the world of fine arts education, there is a long standing tradition of learning through imitation. Young, eager art students would enter a museum with their paint, easel, and canvas in hand. They would set up in front of an old master’s work, and begin copying; brush stroke for brush stroke. Their goal was to emulate the master as closely as physically possible in order to really understand what the master was doing, and how they worked.
           The museum may have ownership of the object, but the artist, or, more likely, the late artist’s estate, must have rights to the image. Or, perhaps the artist transfered their rights over to the museum along with the sale of the work. That is certainly possible, since these rights can be bought and sold, and these often are the terms and conditions imposed upon an artist when making a sale to a large institution. Either way, the artist or the museum owns the rights to the image, and here are these students, blatantly violating these copyright laws by reproducing the images contained on these canvases. Yet, this kind of reproduction is ok.

           How is reproducing a painting on film in anyway different than reproducing it on canvas?

           Perhaps it is a case of the old man vs. technology mindset:
                      Anything that was invented before I was born is normal.
                      Anything invented between birth and 30 is new and exciting.
                      Anything invented after 30 is scary and unnatural.

           Going to museums and painting copies of artwork is old; artists have always done this, it’s normal and acceptable. Going to museums and photographing the artwork is relatively new, and therefore, unnatural and must be forbidden!

           Are some kinds of reproduction acceptable because they are old and traditional?
           Does tradition trump law?
           Should copyright law even apply to a one-of-a-kind physical object?

           I still don’t have an answer that fully satisfies my curiosity. I want an explanation that makes sense. I want an explanation that I can respect. Why can’t I photograph art?

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Kyle Clements

Kyle Clements is a Toronto-based artist and nerd. During his thesis at the Ontario College of Art and Design, Kyle began working on his Urban Landscapes series, a body of work that aims to capture the energy and excitement of life in the fast-paced urban environment. After graduating from OCAD in 2006, Kyle spent a year living in Asia to gather source material and experience in a different kind or urban environment. His work is vibrant and colourful. Whether painting the harsh Northern landscape, or capturing the overwhelming buzz of life in the city, his acrylic paintings hover between representation and abstraction.

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