> 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.
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.
“When Leopold heard they were getting sick because of candy they were eating that was tossed to them by the crowd, he put up an equivalent of a 'Don't Feed the Animals' sign at a zoo, saying, 'the blacks are fed by the organizing committee,'"“
"And by the time of the fair in Brussels, the notion of a human zoo was largely considered distasteful and had been banned in most countries.
Yet change didn’t happen quickly enough for those of the Congolese village in 1958. A number of the original 297 died during the show and were buried in a mass, unmarked grave."
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).
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.
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.
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. 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.
In what was enthusiastically termed a "parade of evolutionary progress," visitors could inspect the "primitives" that represented the counterbalance to "Civilisation" justifying Kipling's poem "The White Man's Burden". ... "But the main draw was the Philippine exhibition complete with full size replicas of Indigenous living quarters erected to exhibit the inherent backwardness of the Philippine people. The purpose was to highlight both the "civilising" influence of American rule and the economic potential of the island chains' natural resources on the heels of the Philippine–American War.
That, to me, is far more "set them up to fail" reality TV than National Geographic. Delivering an artificial message to prove the inherent superiority of the racist colonial master and for them to feel smug. I think I might resent being that "less evolved" exhibit, even if it was sold to me as a great opportunity...
While the colonialists are ravaging your country why not accept their generous offer and go live at one of their zoos!
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.
Interestingly, I wonder if you could make the argument that the "illicit trench coat scanning" would have been an artistic creation falling under copyright, but a higher grade commercial scan (as this now appears to be) does not. It thus makes me wonder if this might have been part of the reason for the cover story.
Are there more exact cases where a court has ruled that a 3D scan is not artistic? I've been surprised how low the threshold seems to be for photographic works, with "cropping" sometimes seeming to qualify. I wouldn't find it impossible for a court to decide that human decisions on how the raw model was cleaned up might deserve similar consideration. But you seem confident that they will not?
The country they stole it from could preserve it too.
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.
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?
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.
The most famous copy is probably Michelangelo's David:
But the largest example is from Trajan's Column in Rome, which is so tall it is reproduced in two sections:
What's the reasoning for that?
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.
There are "light field" cameras now that try to capture all the light coming from the subject, so that the photographer can make the creative decisions later. I assume you'd also be of the opinion that these should not be copyrightable?
And, from the article, the file published by the museum in the article also included a copyright notice on the bottom. Which means it wasn't just a point cloud of the original, but a cleaned and altered version (I don't know what format it is in, so I don't know if it had been converted to a set of instructions). It may also include supports and struts for the model to allow overhangs. Clearly this involved some creative input, and therefore should be copyrightable. Would you agree with that?
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.
In practice, most photos involve creating or capturing a scene in a unique or new way, and this adds something new sufficient to make the photograph a new work and hence subject to copyright.
The act of photographing a public domain painting in such a way that you just reproduce the painting and add nothing new, however, doesn't necessarily create a new work - it may instead count as a reproduction of that original work and hence subject to the original work's copyright, as no new copyrightable material is added.
There is a bit of a grey area in that if I say, arrange a whole bunch of public domain art in a particular way and photograph it, I could quite reasonably argue that my arrangement itself consists of a work and so my photographs are subject to copyright. Similarly if I parody or otherwise transform a public domain work, I can assert that my work is copyrightable as it is transformative. This 3D scan doesn't fall into this area however since the scan was clearly intended to reproduce the original work, as opposed to create a new copyrightable work.
I used to be a photographer, and a tech at a high-end photo lab (e.g. we had a couple of Condé Nast magazines as clients). A lot of jobs incurred more work from the technically demanding end (high resolution scans, color matching) than the creative end.
It's not always clear-cut, there's usually going to be a bit of both sides. There's the whole idea of derived works, where the changes you've made are yours but the work as a whole is also entangled in the copyright of the original. But the more the new work is (meant to be) a faithful reproduction, the more it's "just" a copy and not a new riff. Again, it's about the intention and the difference in content between old and new, not so much about how much work or skill was required.
Another separate point, supposing for the sake of argument 3D models are not creative... It is well known that, say, a "white pages" style phone directory was ruled not to be copyrightable. But does that mean it is a copyright violation?
WRT your second paragraph, I'm not sure I understand. How could there be a copyright violation on something that can't be copyrighted?
I mean, nobody other than the scanner chose or wrote down all those numbers. The creator of the object made an object. Seems like the same distinction to me as a house vs. its phone number and address which locate it.
Per wikipedia copywrite is on "the original expression of an idea in the form of a creative work".
The bust is that expression, the scan is a copy of that and therefore subject to the same copyright as the bust itself (in this case, no copyright).
For a house, I suppose the original expression would be the architect's plans, the house itself is a performance of that expression (when you commission plans from architects part of the terms are under what conditions you can build according to those plans; where I'm from standard terms are for a single performance, at the site the plans were originally commissioned for).
A photo of the house (partially) copies the house which (partially) copies the plans, therefore the photo is subject to the same copyright as the plans (depending on what the jurisdiction says about photos of things in public space). However, a photo may also contain creative expression in the framing, lighting, etc, and is therefore also subject to its own copyright. So to distribute the photo you need permission to distribute this original expression, plus permission to distribute the underlying expression. The more concrete example of this is with models -- advertisers need permission from both the photographer and the model being depicted in the photograph.
There's no creative expression in a phone number or an address, so copyright doesn't apply. Even if there were, there are usually exceptions to enable interoperation (AFAIK Oracle including a poem as part of the database wire protocol hasn't been tested in court, but it's basically the same thing as in Sega vs Accolade, which didn't go well for Sega).
I hope something in there answered your question.
Again I'm not a lawyer, this is my understanding from my past work both as a photographer in my own name (i.e. I own the copyrights) and doing work-for-hire. And more recently contracting with architects and arguing over the terms.
This 3D scan though, is not a reproduction. It is a measurement.
If I run my tape measure around Nefertiti's head, I will obtain a measurement. If you repeat it, it will be the same, provided we both know how to use a tape measure, limited only by the fidelity of our tool.
In fact, any technician, given the tool and a manual, will create precisely the same 3D model.
Having seen Nefertiti with my own eyes, it was a transformative experience, for which I am thankful. But I could never shake the feeling that it should not be in Berlin. I was only able to justify my purchasing the ticket from the looters, since they can be considered to render a service by at the very least preserving it. Like a hostage should be grateful for receiving food. But they certainly do not own it, nor any rights derived from it.
Also, another way to look at it is that you can derive a 3D model from many 2D photos. So does it make sense to claim you can derive something non-creative from many creative works, yet the thing it relates to is the original?
One argument would be that photography involves many creative choices regarding angle, lighting, and so forth, so there’s millions of photos of the Grand Canyon and they’re all different, whereas every 3D scan of the bust would be basically the same except maybe for resolution.
On the other hand, consider maps, or to get really specific, topographic maps. Most people (apart from those against copyright in general) would say you should retain copyright on a topographic map you’ve made of the Grand Canyon, even though that’s really just a 3D scan.
But it's absolutely not "just a 3D scan". I mean, unless you literally had a bunch of drones or something fly through the Grand Canyon and make an actual 3D scan as a pure replication with no further work, sure that'd be a real 3D scan. But actual maps always require creativity. There is no one way to draw lines, objects, water, etc. What should be included on a map, and what is noise? How do you balance between level of detail vs noisiness? What is worthy of being included? What kind of coloring/texture/shading? A hundred cartographers with the exact same tech could all make a map of an area and every single map would be different to one degree or another, not least depending on the exact purpose the map was intended for. That's was particularly true with the limitations of paper, but it still is even electronically. Take a look at the standard map view for Apple Maps vs Google Maps vs various Open Street Maps etc. For the exact same area they'll all be emphasizing different things, and reasonable people very much do disagree on the best way.
So maps are very much copyrightable (though lots are in the public domain since works of the USG are all public domain). They're not just mechanical reproductions.
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.
I don't see why the 3d scan wouldn't be considered similar.
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.
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.
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?
Photogrammetry generally disregards essential components of what makes a photograph a creative work.
It's a n interesting subject, personally.
Consider maps: just accurately capture reality isn't copyrightable, if they have anything that was a creative decision then they do.
Maybe ironically the design and placement of the creative commons false inlay could be make the overall model copyrightable even if just the head part wasn't.
When I pressed them on this considering the supreme court decision Van Dale/Romme  (which is very similar to Bridgeman Art Library v. Corel Corp. ), 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.
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.
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.
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.
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.
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.
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.
The article said they actively blocked others from even taking photos.
"The museum has long prohibited visitors from taking any kinds of photographs of its biggest attraction."
So they are asserting copyright of the work in the sense they are restricting access.
Their only real reasonable excuse might be that flash photography is likely to damage the work but non-flash photography should still be allowed. They've got history of blocking all such access.
Also, I wonder if the "flash" on a phone is comparable to older types.
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.
> 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.