How has the accessibility of art in museums changed since COVID-19?
As COVID-19 shut down museums worldwide, it made physical art inaccessible. Museums responded by digitizing art and creating virtual galleries—making art more accessible than ever. Leading museums, like the Louvre, began virtual tours and moved their collections online, with more than 2,500 world-class museums and art galleries offering virtual tours by March 2020. Through virtual tours, museum patrons can now interactively move through different rooms with augmented reality (AR) and virtual reality (VR). Additionally, art sales have changed as galleries had to find new ways of showing art to potential clients, which they now do through online viewing rooms.
How does this transition affect copyrights?
With this transition to virtual displays, museums and galleries have taken on a new role as producers rather than simply displaying the art. With this new role, there are new intellectual property concerns that museums are facing—specifically, making sure that digitizing their collections does not interfere with copyrighted works.
The Copyright Act of 1976 gives the right to “reproduce a work, prepare derivative works, and distribute copies solely with the owner of the copyright” Many collections in museums are protected by copyright, so their physical ownership doesn’t mean they have copyright ownership. Thus, these copyrighted works cannot be reproduced by museums without the holder’s consent. Museums’ use of AR, however, brings to light new concerns about works derived from copyrighted works. The Copyright Act defines a derivative work as “work based upon one or more preexisting works . . . in which a work may be recast, transformed, or adapted.” When a museum uses AR to alter copyrighted works through visual filters or overlays, they could create derivative works that infringe on the copyright.
Are online viewing rooms fair use?
As artists and galleries considered maintaining sales through the pandemic, they created online viewing rooms where customers can enter a virtual space and view different art pieces the same way they would for in-person viewing. Once in the room, however, you can inquire about a piece or purchase it immediately.
One concern about the rooms is the size of the images. Fair use in copyright allows for small, low-resolution images without a license. However, when galleries display large-scale, high-resolution images without a license in virtual viewing rooms, it must be clarified whether this is permitted under fair use. Thus, sellers must be mindful of image size, and it interplays with copyright laws.
What are the implications of art expanding into the virtual world?
As COVID-19 restrictions end, the art world likely will only return to gallery and museum viewing. The use of technology to face the demands of stay-at-home orders is an exciting step towards the democratization of art, as internationally renowned art pieces used only to be accessible to those who could afford to travel to them. With museums applying more advanced technology through AR and VR, however, smaller museums and galleries may be more vulnerable as they attempt to keep business up by employing the technology yet need more resources to navigate the associated rights issues.
These virtual programs create new intellectual property considerations over AR and copyright infringement, which may strain players in the art world who are already struggling financially. Thus, while the progress in the art world should continue, a compilation of what constitutes copyright infringement through derivatives or fair use of image size could help entities that do not have the resources to determine the limits of the law through litigation.
If you need copyright counseling, including advice regarding navigating the interplay between technology and art, contact us to learn out how we can help.
