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The Neues Museum claims copyright over 3D-printing files of the Nefertiti bust (slate.com)
103 points by rrauenza 5 days ago | hide | past | web | favorite | 91 comments





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.


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.


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.

“The most talked-about part of the exhibition was the "human zoo" — a mock African village set up in the estate's woods and ponds. King Leopold, who never set foot in Congo, imported 267 Congolese men, women and children to Tervuren and displayed them behind a fence.

“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,'"“

https://www.npr.org/2018/09/26/649600217/where-human-zoos-on...


Interestingly, this was just published by CNN

https://www.cnn.com/2019/11/30/europe/belgium-blackface-colo...


An African village was one of the attractions during the 1958(!) World Expo in Brussels. My mother remembers it very well going there as a teenager.

https://www.cbc.ca/natureofthings/m_features/human-zoos-a-sh... :

"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."


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

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

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.


This is the context for Heart of Darkness by Conrad, which was the basis of the Vietnam war film Apocalypse Now.

https://en.wikipedia.org/wiki/Heart_of_Darkness


I had no idea, thank you for this.

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.


> 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...


I'm assuming that few to none of them got much choice in the matter, or at best a bait and switch promoting an opportunity to see St Louis, London or wherever. It wasn't so much to learn of these people but a self-justification of colonial superiority. This was the era of paternalistic colonialism in most of the developed nations, when the US still openly spoke of empire and their civilising mission, whilst gaining Guam, Philippines etc, and Jim Crow segregation was endemic. It's also the era that saw the rise of the fashion of eugenics and enforced sterilisation etc. I'll just quote from Wikipedia talking of the 1904 St. Louis World's Fair, though it is only part of the full quote on Wikipedia:

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...


> Meanwhile the people got to live in relative peace and safety compared to their home countries.

While the colonialists are ravaging your country why not accept their generous offer and go live at one of their zoos!


This happened to all treasures owned by the country that got colonized. Some of the treasures probably were taken legally (I.e. given as a gifts before colonization happened).

Italy returned the Axum Obelisk. Yes it happens, yes amendments can be made.

But with that logic you'd also have to shutter half the other museums in Europe, e.g. British museum is full of stolen stuff.

Yes absolutely, Great Britain is another rather prominent case when it comes to looted art. One just has to think about some of the more prominent examples, like the Koh-i-Noor, or when it comes to the museum, the elgin marbles.

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.


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...


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...

https://dejure.org/dienste/vernetzung/rechtsprechung?Text=I%...


Thanks, unlike the linked article, this argument gets at the core of the matter: if the scan was not an artistic creation, it is not eligible for copyright protection. Here's a summary of Meshworks v Toyota: https://www.intellectualpropertylawblog.com/archives/meshwor...

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?


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...

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

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

The country they stole it from could preserve it too.


> 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.


> 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?


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.

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.


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://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...

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


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?


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.


Thanks for the informative answer :)

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?


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


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.


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)...

Photographers don't automatically gain copyright of a photo by virtue of it being a photo - they gain copyright when they create what the law considers a copyrightable work.

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.


As far as I know, 3d scanning is not a matter of just pushing a button on a device, whereas a photo can be, so the presumption ought to be that the former involves more creativity than the simplest example of the latter.

Tedious work and creativity are completely orthogonal.

I would say they are definitely not orthogonal. Things that aren't automated and aren't easy (and some that are easy) require choosing from a near-infinite number of alternatives in a way that can't be or hasn't been defined in a mechanistic way. If I claim that seems like a reasonable definition of creativity, what do you think is missing from it?

It's a question of expression vs reproduction. A 3d scan copies the object being scanned, without interpretation or (intentional) embellishment. It's the same with photographs taken for documentation purposes. The skill required doesn't matter.

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.


I'm not experienced in creating complex 3D models, but my passing acquaintance with such things (including trying to write a program to convert points to a mesh once) makes me think the claim there is no interpretation or more than one way to create a model of an object is absurd. This seems like an extreme example of assuming something you haven't done is trivial.

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?


It's not about how easy it is, or how many ways there are to do the thing. The point of a 3d scan is to reproduce the facts of the object being scanned: there's this surface at this position with this normal, another one there with these properties, etc. Choices to be made might trade accuracy for less cost (in time and/or money), but those choices don't change the fact that the scan's purpose and value rest in the facts being recorded. It's like the quake fast inverse square root vs the pedestrian n => 1/sqrt(n), the skill in writing fast inverse square root doesn't imbue the result of its evaluation with any of that.

WRT your second paragraph, I'm not sure I understand. How could there be a copyright violation on something that can't be copyrighted?


Ok, if the facts that are used to make a phone directory can't be copyrighted, then why would the facts that are used to make a 3D scan be copyrightable?

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.


I'm not quite following wrt the phone book/ house / phone number / address.

Per wikipedia[1] 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[2] hasn't been tested in court, but it's basically the same thing as in Sega vs Accolade[3], 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.

[1] https://en.wikipedia.org/wiki/Copyright

[2] https://news.ycombinator.com/item?id=10042572

[3] https://en.wikipedia.org/wiki/Sega_v._Accolade


I think "photographers deserve copyright to reproductions of public-domain objects" is also quite controversial, and the law in various countries varies on it. (in Germany, as far as I know the current practice is indeed that they do, but this is also widely criticized)

A photographer can, at the very least, choose the angle from which to project. There are avenues for some amount of unique creative expression.

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.


If there was only one way to create a 3D model, wouldn't it be a matter of just pressing a button? Now, if it was, that wouldn't totally prove it was not creative, since 2D photography can be as simple as pressing a button. But if there are many ways (like, greater than the number of atoms in the universe) to do something, it seems logical to presume it is creative.

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?


My wording above wasn't quite precise enough: I was thinking of "reproductions of public domain 2D images (drawings, paintings, ...)" specifically, where creativity plays less a role, and what the German legal precedent is about.

You were downvoted but I think it’s a good question.

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.


>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.


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...

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.

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.

I don't think that's what they're saying (they're saying slapping a CC license on a work you can't/shouldn't be able to hold a copyright on that would give you the right to attach a license to is meaningless), but the CC-NC provision is often criticized for being quite unclear and a risk.

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.

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.


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.


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.


The two scans would only be identical if you were using the same equipment with the same algorithms. I don't see it as the same as copying a DVD.

A rip of a DVD is also only identical if you're using the same equipment and the same algorithm. XviD and x264 produce different compression artifacts, but they're still making a reproduction rather than a creative work.

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?

> 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.


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?

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?


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.


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?

I'm not saying it wouldn't be copyrightable, but I can see how it wouldn't be. It's not transformative, in fact the idea is to get as close to a replica as possible. It could easily be described as utilitarian until it's modified, a description of facts like news, the phone book, or recipes. But let's say it's copyrightable, are we saying that the digital representation of the object is under copyright, or that specific file? That's how fonts work, the shape of the characters are not copyright protected, but the actual font file is, so I can go a recreate a font as long as I re-write it myself (and obviously don't wind up with identical file output in the end).

It's a n interesting subject, personally.


If the 3d scan involved any creative input then it would also be protected. The sketch is understood to have your creative input applied to what you observed.

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.


Real-world objects are generally not copyrightable, unless they fall into one of the categories in which copyright law defines, such as sculptures, buildings, and "works of artistic craftmanship". If it's just a rock, or a mass-produced car part, it's unlikely to be copyrightable. Hence it would follow, at least to me, that a mechanical 3D scan of the object wouldn't be copyrightable either, since it has no originality.

A brief search suggests that the shape of a car is copyrightable, but only to the extent that it isn't dictated by function.

https://ccbjournal.com/articles/automobile-designs-protectin...


The "original" scan has been available since at least late 2015, https://web.archive.org/web/20151229174934/http://nefertitih...

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

[2] https://cdn.vangoghmuseum.nl/1/4/1791/1/beyXX73TgUY8hhFrzwKg...

[3] https://www.vangoghmuseum.nl/download/71396fdf-e8ce-4b37-90e...

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

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


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").

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.


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

I thought that was a rogue operation

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.


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.

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.


> 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.


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.


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.


No, they do not claim copyright over the physical bust.

I'm fairly sure if they could they would.

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.


I was in a museum that said photography is forbidden because of the fragility of the objects in a particular exhibit. I thought it was weird/amusing that it had no indication (even in an icon or something) of flash photography being the problem.

This is because people will "forget" that their flash is on. "Oops"! Easier to just ban it altogether.

People will also see a sign that looks dumb and figure that they might as well ignore it because it doesn't make sense.

Also, I wonder if the "flash" on a phone is comparable to older types.


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

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

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...


But why?



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