
The Neues Museum claims copyright over 3D-printing files of the Nefertiti bust - rrauenza
https://slate.com/technology/2019/11/nefertiti-bust-neues-museum-3d-printing.html
======
chabes
The last paragraph sums up pretty concisely why the actions taken by the
museum are inappropriate: museums are not gatekeepers of culture, but stewards
of culture.

> The most important part is that adding these restrictions runs counter to
> the entire mission of museums. Museums do not hold our shared cultural
> heritage so that they can become gatekeepers. They hold our shared cultural
> heritage as stewards in order to make sure we have access to our collective
> history.

~~~
keenmaster
It would be glorious if an ethnic Egyptian publicly distributes the Nefertiti
scan and solicits a copyright claim. The Neues museum really has it coming.
They shouldn’t even have the bust. Their sense of entitlement is shocking.

What bothers me more is the Royal Museum for Central Africa in Belgium.
Belgian King Leopold II ravaged modern day DRC and perpetrated a genocide
there. Belgium pilfered Congo’s treasure and brutally enslaved its people.
Yet, the treasure is still in a Belgian museum, the same museum that used to
have a “human zoo,” displaying the conquered people like pets. The museum is
reinventing itself, but its mere existence is insulting. They should return
the treasure, dedicate most of the museum to Congo Genocide remembrance, and
forward all revenues to NGOs and infrastructure projects in the DRC.

~~~
StavrosK
Do you have details on the human zoo? That has got to be right up there in the
list of shitty things people have done.

~~~
NeedMoreTea
Wasn't limited to Leopold, though his Stalinesque reputation means his is
probably one of the better known. Many of the "developed" nations of the late
1800s and early 1900s had ethic villages or exhibitions - with live exhibits.
London, Paris, New York, etc. St Louis made a point of adding newly acquired
native Philippinos to the native American display at the World Fair and 1904
Olympics. Developed nations carried on with those exhibitions far longer than
you might expect or hope. Though they were in decline by WW2, there's been a
fair selection of basically racist exhibits post war.

[https://en.wikipedia.org/wiki/Human_zoo](https://en.wikipedia.org/wiki/Human_zoo)

King Leopold II was a bit special, even by the standards of the height of
colonialism. His privately owned Congo Free State - it really was his, founded
and owned by him personally was excessively bad at everything. It started
public and government campaigns in Britain, America and I believe France and
others too, ultimately culminating in multiple nations taking stand and
signing treaties against Leopold's vanity project. The atrocities were far in
excess of any other colonial power for the few years he owned it. Millions
died, millions more, including children, had hands or feet hacked off. The
state stepped in and it became the Belgian Congo after 15 or 20 years of
Stalin ^W Leopold. (Edit: In that time, the 1919 Belgian Government Commission
estimated half the population had died).

[https://en.wikipedia.org/wiki/Congo_Free_State](https://en.wikipedia.org/wiki/Congo_Free_State)

Belgium has been surprisingly reluctant to even acknowledge this black spot in
their history, and you will still find plenty of statues, squares and streets
in his honour.

Should you want to read more, and it's not an easy read, I'd recommend King
Leopold's Ghost by Adam Hochschild.

~~~
larnmar
Assuming the people on display did not especially object to it (and I assume
they didn’t because if they did they’d be a lousy and dangerous exhibit) does
this sound so bad?

You have to remember that people in these days didn’t have national geographic
documentaries — if you wanted to learn how people in other cultures lived,
you’d have to do it from an exhibit like this. Meanwhile the people got to
live in relative peace and safety compared to their home countries.

~~~
icebraining
> I assume they didn’t because if they did they’d be a lousy and dangerous
> exhibit

This is an absurd assumption. Slaves can be convinced to do anything, based on
threat of force to them or their families. Even returning to the Congo might
be threat enough, considering how they were treated there[1]. And of course,
the few they couldn't be convinced (maybe they didn't have a five-year old
daughter whose hands and feet could be cut off as punishment), could simply be
replaced.

[1]
[https://en.m.wikipedia.org/wiki/Atrocities_in_the_Congo_Free...](https://en.m.wikipedia.org/wiki/Atrocities_in_the_Congo_Free_State#Mutilation_and_brutality)

------
Animats
This is mostly huffing and puffing by museums. In the US, this was settled in
Bridgeman vs. Corel, in 1999, and reinforced by Meshwerks vs. Toyota, which
extended that to 3D scans.

This is effectively settled law. The best demonstration of this is that
Wikipedia operates on the principle that scans of public domain art can be
included in Wikipedia, and the Wikimedia Foundation is willing to go to court
over that. The National Portrait Gallery in the UK did start a lawsuit once,
but backed down. After 20 years, no claim of copyright on a copy of a public
domain image seems to have gone anywhere in court.

~~~
bjelkeman-again
In Sweden the highest court ruled that the distribution of photographs of
public art is a breach of copyright. Wikimedia got sued and lost.

[https://blog.wikimedia.org/2017/07/25/wikimedia-sweden-
freed...](https://blog.wikimedia.org/2017/07/25/wikimedia-sweden-freedom-
panorama/)

~~~
tastroder
In Germany, the country in question here, the current stance of the federal
supreme court (links to Wikipedia case below, ruling is dated 12/2018) seems
to be that even photography of public domain works can retain copyright with
the museum. To be clear, I find both that stance and the behaviour of the
organisation behind the museum appaling but I'm really not sure how US
copyright law or unrealized EU directives are all that relevant. Intellectual
property rights in Germany are complicated and when in doubt usually err on
the side of copyright holders.

[http://ipkitten.blogspot.com/2019/02/digitized-images-of-
wor...](http://ipkitten.blogspot.com/2019/02/digitized-images-of-works-in-
public_19.html?m=1)

[https://dejure.org/dienste/vernetzung/rechtsprechung?Text=I%...](https://dejure.org/dienste/vernetzung/rechtsprechung?Text=I%20ZR%20104/17)

------
coldtea
Museums stuffed to the brims with artifacts taken from all the peoples of the
world, downright stolen or bought for a penny under colonial occupation
pretend they have any more standing to copyright them...

~~~
lima
They are preserving and restoring those artifacts, and making them available
to scientific research. It's more nuanced than that.

~~~
coldtea
When an artifact is not yours, it doens't matter if you "preserve it".

The country they stole it from could preserve it too.

------
awinter-py
> The scary language has real-world consequences. These 3D scans could be used
> by people who want to 3D-print a replica for a classroom, integrate the 3D
> model into an art piece, or allow people to hold the piece in a virtual
> reality world.

Partial reuse for art & photocopy for classroom are areas where people have
traditionally ignored copyright and been fine. The question of copyright in a
historical scan is I guess an important question but not for these reasons.

More relevant case might be a rival museum setting up a gallery of 3d prints
of scans.

I'm not an expert but the law here is probably unclear -- I think the author
of this article is blurring the difference between copyright of the sculpture
and copyright of the scan. These scans are hard to make. Someone who drew a
picture of the sculpture could assert copyright over the drawing (as other
comments here point out).

Also, the sculpture itself may be copyrighted if significant restoration work
went into it.

~~~
PostOnce
> Also, the sculpture itself may be copyrighted if significant restoration
> work went into it.

If I restore something to it's original state, I'm just copying the artist,
not creating my own art. Wouldn't any claim to copyright on that original work
lie with the long-dead creator?

~~~
awinter-py
Counter-example -- a dinosaur skeleton where a significant amount of creative
reconstruction goes into arranging the thing and posing it. This is a mix of
art and science because you're using paleontological clues about gait etc
combined with visual sense.

~~~
dredmorbius
Is such preservation or reconstruction "an original work of authorship" (17
USC 102(a)), though?

Because it seems that many such interpretations (including the Neues Museum's,
though that at least has a credible claim to not be strictly governed by US
law) have less to do with copyright and original authorship, and more with the
capacity for an empowered extant gatekeeper to continue gatekeeping under
colour of law.

------
mikhailfranco
The copying of ancient artifacts predates 3D scanning and printing. The V&A
Museum has a huge hall called the Cast Court, which displays 3D
reconstructions of statues and architecture made using plaster casts.

[https://en.wikipedia.org/wiki/Cast_Courts_(Victoria_and_Albe...](https://en.wikipedia.org/wiki/Cast_Courts_\(Victoria_and_Albert_Museum\))

[https://www.vam.ac.uk/collections/cast-
collection](https://www.vam.ac.uk/collections/cast-collection)

The most famous copy is probably Michelangelo's _David_ :

[https://www.vam.ac.uk/articles/the-story-of-michelangelos-
da...](https://www.vam.ac.uk/articles/the-story-of-michelangelos-david)

But the largest example is from Trajan's Column in Rome, which is so tall it
is reproduced in two sections:

[https://www.vam.ac.uk/articles/trajans-
column](https://www.vam.ac.uk/articles/trajans-column)

------
marcus_holmes
I'm confused. We think that photographers ("2d-scanners"?) deserve the
copyright to their photos of public-domain objects, but "3d-scanners" don't?

What's the reasoning for that?

~~~
xoa
Because no matter the effort it's ultimately a factual compilation, a pure
work of collecting objective facts about something in the public domain with
no creativity at all. Photography in general (with the exception of an exact
mechanical copy attempt), precisely because it's distilling a 4D world into a
2D image, necessarily involves subjective choice in terms of framing, timing,
etc. For any given event there are a limitless number of ways and specific
timings/positions to try to capture it in photographs. A 3D scan of an object
though is objective, an effort to put together as exact a total record of it
as technologically feasible. It might be very expensive and take a lot of
work, but that's not good enough.

In the USA at least, "sweat of the brow" doctrine does not legally exist for
copyright. Ie., it doesn't matter at all how much work someone put into
something not copyrightable, it's still not copyrightable. "Mere collections
of facts" fall under this, with a classic example being a phonebook. It might
(at least historically) have been an enormous amount of work to accurately
collect, compile and maintain a phone listing for an area. But it would have
no copyright protection. A unique and creative presentation could, but not
something basic and expected like alphabetical or numeric order. This has been
definitively settled by the Supreme Court.

A 3D point cloud is a mere collection of facts about the geometry of an
object. If the object is already public domain that's that. You could
certainly _use_ that data to make something creative and copyrightable in a
large variety of ways though.

~~~
jdmichal
Worth mentioning that recipes cannot hold copyright in the US for this same
reason. (By recipe I mean the functional list of ingredients and directions.)

[https://paleoflourish.com/recipe-
copyright/#protected](https://paleoflourish.com/recipe-copyright/#protected)

~~~
dredmorbius
The recipe exclusion has more to do with the _functional aspects_ limitation
of copyright. That is: copyright protects _authorship_ and _expression_ , but
not the _functional properties_ of a work.

A recipe's failures under copyright follow both from it being a factual
relation (ingredients, quantities, treatment, cooking), and a result (a
finished dish or baked good). Neither of these is protected under US copyright
law.

See: Publications International, Ltd. v. Meredith Corp.

~~~
jdmichal
That case is cited in the link I included, and I even called out the
functional clause? I don't see what else you're trying to say? Unless the
intent is that 3D scans and recipes are not alike in copyright failing, in
which case all I can say is that I don't see how a point cloud is any
different a collection of factual relations (points) and a result (3D
object)...

------
JorgeGT
While the museum motivations are quite shady, this is the first time I see the
CC-BY-NC-SA license being described as "legally meaningless lawyer language",
"scary" and "giant keep out sign". FWIW, I saw plenty of people taking photos
of the bust anyway...

~~~
bhickey
Re-read it. The author isn't describing CC-BY-NC-SA as meaningless. He's
describing its use by Neues as legally meaningless because Neues doesn't have
an enforceable copyright to the bust or scans of the bust.

~~~
lima
He describes it as "scary language" and a "giant “keep out” sign", which is
FUD that does accurately represent the CC-BY-NC-SA license.

------
jacquesm
Any museum that stands in the way of distribution of copies of those objects
that it is at present steward of is failing its own mission statement.

------
burnte
Good luck with that.

But it does bring up an interesting legal question as to the copyrightability
of 3D scans. original 3D models should be protected by copyright, but what
about scans of existing objects? Does that really count as a creative work?
Especially scans of old objects like this.

~~~
sundayedition
Wouldn't this be a transformation or an independent work of sorts? If I drew a
sketch of the same bust, wouldn't I have the copyright to my sketch?

I don't see why the 3d scan wouldn't be considered similar.

~~~
notatoad
If you drew a sketch that you felt was the ultimate best sketch possible, and
without seeing your sketch i drew a sketch of the same subject that i felt was
the best sketch possible, we'd come up with two completely different sketches
that were each our own interpretation of the original work.

If you took a 3D scan, and i took a 3D scan of the same subject, barring
either of us making a mistake, we'd both come up with exactly the same final
result.

3D scanning is not the creation of an original work, it's a reproduction.
Claiming copyright on a 3D scan is just as crazy as claiming copyright on any
other reproduction. I can't rip a DVD and then claim that my ripped MKV file
is an original work that i own the copyright to.

~~~
dpau
without using a 3d scanner, i can take very precise measurements by hand with
a result that rivals the scan. so in that case it becomes a question of
resolution or fidelity. the question is, how accurate does a reproduction need
to be to violate copyright?

~~~
nineteen999
> without using a 3d scanner, i can take very precise measurements by hand

Ignoring the practical part of this, which is that the Museum isn't going to
let you close enough to the bust to do this. But assuming they did for a
second -

> with a result that rivals the scan

The linked scan contains nearly 6.5 million tesselated polygons, and surface
color data in Ptex format. You are not going to be able to get within cooee of
that. Any hand measured copy is going to qualify as an artists interpretation
and would not violate copyright I should think.

~~~
dpau
of course. it's a thought experiment. theoretically given enough time and
extremely precise instruments it would be possible to get measurements close
enough. so the question remains- is this really an issue of "artistic
interpretation" or just accuracy?

~~~
perl4ever
As I posted elsewhere, I think I have a philosophical issue with the idea that
you can undo or reverse the creative process through creating an additional
derivative work.

Say you take a lot of photographs of an object, and they are stipulated to be
creative. Then you can use photogrammetry to derive a 3D model. So if the
direct antecedent of your work was creative, how can your model be
noncreative?

~~~
icebraining
If I take one of those photos and I use a color picker on the first pixel, and
I obtain the value #55A3FF and I write it down, is that value a creative work
due to originating from those pictures?

Photogrammetry generally disregards essential components of what makes a
photograph a creative work.

~~~
perl4ever
My question is, if it's not a creative work, does it violate the copyright of
_the owner of the object photographed_ , if the photo was a legitimate
creative work?

------
web007
The "original" scan has been available since at least late 2015,
[https://web.archive.org/web/20151229174934/http://nefertitih...](https://web.archive.org/web/20151229174934/http://nefertitihack.alloversky.com/)

------
Confiks
You can see this kind of behavior with many museums and cultural institutions.
For example with the Van Gogh museum in The Netherlands. They warn you
explicitly that you may not use images of Van Gogh paintings for commercial
purposes or in a size larger than A4. For example when you try to download _De
aardappeleters_ [1], you'll meet these two [2][3] documents with terms and
conditions.

When I pressed them on this considering the supreme court decision Van
Dale/Romme [4] (which is very similar to Bridgeman Art Library v. Corel Corp.
[5]), they responded with the following:

 _" First of all the Supreme Court decision in Van Dale/Romme is not about
photographs but about a collection of factual data. In this decision the
Supreme Court determined when a work is protected by copyright. In our opinion
the photographs that we offer on our website do comply with these criteria.
The photographer had to make creative decisions in repect of lighting,
illumination time, shutter speed, distance, angle etc."_

 _" Secondly, the photographs are our property. We have invested in the making
of these photograhps. Since the photographs are our property, we can decide
when and how the photographs are used and by whom. We can set the terms and
conditions. If you order photographs from our website, you are bound by our
terms and conditions. If your use of the photographs violates these terms and
conditions, you will be in breach of contract and we are entitled to take
legal action."_

 _" You or your client are free to make products with the paintings of the
painter Van Gogh, but if you would choose to do so with our high res
photographs and therefore want to profit from our efforts and investments you
will have to comply with our terms and conditions. If you do not want to pay
the requested compensation for the use of the photographs, we suggest you use
some other pictures or photographs."_

 _" Please note that our museum has to be self-sufficient. The exploitation
costs of an art institute like the Van Gogh Museum are considerable and all
our income is invested in the exploitation of the museum. The compensations we
ask for the use of our photographs help us to keep the museum up and
running."_

They seem to admit that anyone would be free to make (high-resolution) copies
of Van Gogh paintings, while at the same time claiming that they own the
copyright on the high-resolution images files that they created and sell.

[1]
[https://www.vangoghmuseum.nl/en/collection/s0005V1962](https://www.vangoghmuseum.nl/en/collection/s0005V1962)

[2]
[https://cdn.vangoghmuseum.nl/1/4/1791/1/beyXX73TgUY8hhFrzwKg...](https://cdn.vangoghmuseum.nl/1/4/1791/1/beyXX73TgUY8hhFrzwKg5QomRGxlmutuAqycoEXjhKG-8BUeXXSpNlcWDJpN7SSL)

[3]
[https://www.vangoghmuseum.nl/download/71396fdf-e8ce-4b37-90e...](https://www.vangoghmuseum.nl/download/71396fdf-e8ce-4b37-90e8-649d458f915f.pdf)

[4]
[https://nl.wikipedia.org/wiki/Arrest_Van_Dale/Romme](https://nl.wikipedia.org/wiki/Arrest_Van_Dale/Romme)

[5]
[https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel...](https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp).

~~~
lazyjones
IANAL, but isn't it quite obvious that a photograph of a painting that
faithfully reproduces it has no creative/artistic value of any kind and can
therefore not be protected by copyright? They explicitly made ridiculous
claims because they know this ("The photographer had to make creative
decisions in repect of lighting, illumination time, shutter speed, distance,
angle etc").

------
calibas
I once tried to work with the Oakland Museum of California to digitize some
paintings of theirs that were in the public domain. I figured they'd be happy
to share since a museum is supposed to be about spreading art and culture, I
was surprised when they were quite resistant to the idea.

They weren't allowing people to take high quality photos. I just wanted to put
them up on Wikimedia Commons, but I got the impression the museum didn't want
any competition from anyone.

------
onetimemanytime
Devil's advocate: Can they claim ownership of the 3-d scan and work derived
from it? They are the ones that scanned it with that much detail

~~~
ant6n
I thought that was a rogue operation

------
peglasaurus
So they claim copyright? So they can prove they own it? Where did it come
from? Who exactly is the craftsman who made it? Can I see complete
documentation? I’ll be expecting a complete transfer history or the current
ownership claim is invalid. No uncertainty allowed, names, dates and place of
origin please. Do they still want copyright if they can’t even show complete
chain of creation to their current ownership? How about certification that
shows legal transfer of the item from the original craftsman to the current
holders lawful possession?

Obviously these are farcical questions but the museums answers are likely not
to be so laughable or ridiculous. Quite a lot of their answers will show they
don’t actually own the item - they just have it. For now.

In reality the museum is just the current holder of something that was
probably actually stolen. A thief can’t claim much of anything can they?

Perhaps the museum should clarify its exact claim so that no others can
challenge them. And “because we’ve had it for awhile” doesn’t count. Maybe the
museum should not only admit they don’t have copyright but that in a very real
way they shouldn’t even have it to begin with.

~~~
incompatible
I assume that they are claiming copyright in the digital file that they
created. As in: I took a photo, I made a digital file, I have copyright in the
file. The question comes down to exactly what copyright law for the particular
country says, but it's likely to require a degree of originality, which an
exact copy of an existing work doesn't provide.

~~~
peglasaurus
I actually don't think a photo has the same intent as a scan. A scan of the
type they made is intended to assist or aid in reproduction. That implies
control of the original.

A photo is a view of an item. Angle, lighting, environmental factors chosen by
the person taking the photo. These are all choices by that person.
Creative/artistic choices in of themselves and in addition to the work being
photographed.

A scan intended for reproduction is different. It is a best effort
reproduction of an existing item. A copy. The museum made no creative choices.
When you do a scan like this the optimal result is the ability to 100%
reproduce the item. Molecule by molecule if possible but the exterior is
always feasibly easier.

I'd be interested to see where these laws head as the future proceeds.
Copyright law is a mess but not as much of a mess as those for patents.

~~~
mkl
> The museum made no creative choices.

This is not really true. 3D scanners are far from perfect, and getting good
useful results does involve making artistic and technical choices. I did my
PhD on reconstructing surfaces from laser scan data, and spent long hours
comparing different methods and parameter values in minute detail - there's a
lot of flexibility, even when the goal is the best possible fidelity.

I do think claiming copyright goes against the purpose of museums, though.

~~~
mantap
But you are adjusting values to get a more perfect reproduction, not to
produce a new work.

Copyright doesn't care how long you worked or how hard it was. It cares if you
made a new creative work. What you describe would be more in the domain of
patents.

~~~
mkl
Yes, but I think there are two problems with that idea, and that it can be
creative:

1\. There is no digital ground truth, so you can't actually objectively tell
whether your adjustments are making it more accurate. It relies on subjective
comparison and sometimes manual patching up (3D equivalent of photoshopping).

2\. There are many different equivalently accurate representations, some of
which are better for some purposes. E.g. how the surface is tessellated or
otherwise represented, which bits are more important and deserve more
fidelity, 3D printing (and what kind) or CNC router or virtual movie prop,
etc.

I think it's copyright rather than patents, as it's very manual and subjective
(not a well-defined process or algorithm).

Of course, I am not a lawyer, so I don't know how much of what I'm describing
is sufficiently creative to count as a new work.

------
bitL
Museums are broke, this might be a calculated marketing stunt to attract more
visitors. Negative news is better than no news...

------
buboard
Copyright for a piece of art stolen from Thutmose's worshop, 3000 years later.
Great job

------
lima
Basically, the museum's defenses are:

1\. In Germany, photographs of public-domain art are copyrightable. They
assert that this extends to 3D scans, which are similar in nature, and that
the scans are not in the public domain.

The situation on this is very clear in the US (copies of public domain art are
always public domain), but not so in Germany, where no such law exists.
Article 14 of the new EU Copyright Directive will fix this, but this has not
yet made its way into German law. EU Directives are basically templates for
national law, but are not laws themselves, and the process can and usually
does take years.

The article mentions that it's not yet implemented, but then goes on to claim
that the institution might commit "copy fraud", which cannot be the case if
it's not yet the law.

Perhaps this is why the museum caved in so quickly?

2\. Most German institutions that are funded by tax payer money have an
obligation to generate profits where they can, to reduce the taxpayer burden.
They cite an example of €2M of profits from their commercial picture licensing
deals. Without being able to copyright their pictures, this would be taxpayer
money spent, or a cut in funding. Obviously, there's an argument to be made
that this would be a very good use of taxpayer money, but it's a valid point
to make.

The foundation is a non-profit entity - any money they make will go towards
conservation efforts.

There are other similar examples - the German national weather service does
not make its high-resolution Cosmo-D2 weather model available for free, and
neither does the national land survey office publish all of its maps or its
millimeter-resolution AGPS data feed for free. The reason is that those are
worth a lot of money to commercial weather forecasting services or survey
companies and licensing the data funds the data collection efforts.

The weather service (DWD) actually used to publish its high-resolution weather
forecast for free as a smartphone app (DWD WarnWetter) and got _sued_ by a
free ad-supported online weather service (WetterOnline) on antitrust grounds
and was forced to discontinue its free service - this lawsuit is still going
on[1].

> _The scary language has real-world consequences. These 3D scans could be
> used by people who want to 3D-print a replica for a classroom, integrate the
> 3D model into an art piece, or allow people to hold the piece in a virtual
> reality world._

The Creative Commons license in question is widely used and not scary at all -
many artists use it themselves, and given how widespread and accepted it is,
it's the exact opposite of a "keep out" sign.

Very interesting situation, and great work by the activist who made it happen
and the German professor supporting him. The article could have used a little
less exaggeration.

Personally, as a German tax payer, I'm happy about my tax money being put to
good use by making such copies public domain in the future, and I hope that
the new law will not deter such 3D scanning efforts in the future.

[1]: [http://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/doc...](http://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&pm_nummer=0039/19)

------
kaffeemitsahne
But why?

