3D Printing & Imaging Craft & Design Photography & Video Workshop

 

The cast of Michelangelo’s Moses on the campus of Augustana College. Photo credit: Jerry Fisher
The cast of Michelangelo’s Moses on the campus of Augustana College. Photo credit: Jerry Fisher

Late last year we highlighted the fantastic work that the Cooper Hewitt Museum is doing to set an example for how museums and other cultural institutions can make high quality 3D scans available to the public. Unfortunately, just as long summer days must turn to cold winter nights, we now have an example of a different cultural institution doing a fantastic job of setting an example of how not to handle the same types of issues.

Scene: Sioux Falls, South Dakota

Sioux Falls is home to a high quality cast of Michelangelo’s Moses, one of his best-known sculptures.* The cast itself co-owned by the City of Sioux Falls and Augustana College and is on public display on the campus of Augustana College.

Local photographer Jerry Fisher decided to use the sculpture as his subject while he honed his 3D capture skills, documenting his progress on Twitter and Google +. Unfortunately, this completely reasonable and legal act caught the attention of representatives of Augustanta College. Citing an unspecified (and ultimately nonexistent) mixture of copyright and other intellectual property rights concerns, the College asked Fisher to remove his 3D files from the internet. Fearing some sort of liability, Fisher complied with this groundless request, thus depriving himself and everyone else of the opportunity to use the files.

Augustana College’s Request Was Out of Line – The Public Domain is Real

image 2 - augustana-college-sd_200x200

Let’s get one thing out of the way right now: Augustana College had no legal right or basis to threaten Fisher with the specter of infringement. There is no copyright protection for a sculpture that was created at the dawn of the 16th century by a sculptor who died 450 years ago. All of Michelangelo’s work is firmly in the public domain. If fact, copyright didn’t even exist during Michelangelo’s lifetime. From the moment he sculpted his Moses anyone could copy, remix, and build upon it for any reason, without having to ask permission.

Of course, the sculpture in Sioux Falls is not Michelangelo’s original sculpture. The original Moses is still in Italy. The Sioux Falls sculptures are exact replicas made in the early 1970s – exact replicas, it seems appropriate to mention, that were made without permission of Michelangelo’s estate because the originals are not protected by copyright. There was no copyright on the original sculpture, and there is no copyright in the exact copies of the original sculpture.

If Fisher were practicing his 3D scanning on original sculptures made in the early 1970s, the sculptures would likely still be protected by copyright. Fortunately for Fisher and everyone else, the sculpture in question is not an original sculpture – it is a copy. Just as scanning a 16th century map doesn’t give me a new copyright in the scan file, casting a copy of a 16th century sculpture doesn’t give me a new copyright in the cast.

 

The Norman B. Leventhal Map Center at Boston Public Library scanned this 16th century map, but doing so did not give the library a new copyright in their scan. (link: http://maps.bpl.org/id/n48222)
The Norman B. Leventhal Map Center at Boston Public Library scanned this 16th century map, but doing so did not give the library a new copyright in their scan. (link)

Without a copyright in the original sculpture or the reproduction, there is simply no copyright reason that Fisher shouldn’t be able to make as many scans as he likes. It is irresponsible, and undermines Augustana’s mission to “enrich[] lives by exposure to enduring forms of aesthetic and creative expressions,” for Augustana to suggest otherwise.

3D Scanning is Not Magic

 

3D render of Moses courtesy Jerry Fisher
3D render of Moses courtesy Jerry Fisher

On some level, the college recognizes that they do not have the right to restrict copies of their Moses cast. People take photographs of the sculptures all the time, but the college does not assert an imaginary copyright interest and request that those pictures be destroyed. But somehow, a 3D scan – just as much a copy from a copyright standpoint as a photo – raised novel and inarticulable concerns with College officials. Fortunately for everyone who is not Augustana College, 3D scanning is not magic and does not give Augustana College or anyone else the right to steal works out of the public domain.

How Did This Happen?

In all likelihood, Augustana College was not acting maliciously when they told Fisher to take down the files, and did not realize that they were doing anything wrong. This case has all of the hallmarks of a type of lawyer-itus (or quasi-lawyer-itus), that tends to manifest itself around copyright. Representatives for the College had a vague concern that the scanning might possibly infringe on someone’s copyright or trademark or something, and that somehow the College could be implicated.

When faced with that vague concern, the College essentially had two choices. One was to do some research in order to find out if their concern was actually warranted. The second, and this is the path it appears they took, was to just say no, throw out scary words like “copyright,” shut the project down, and hope that the problem went away.

The second choice is the lazy choice and is almost always easier. It takes almost no time and effort. But it also takes away the public’s right to access public domain works (the same right, it should be noted, that allowed the casts to be made in the first place).

This type of choice between reacting and thinking is one that leaders at cultural institutions all over the country will be facing in the coming years when they start getting questions about 3D scanning. There is always the temptation to say “no” and get on with your day. But the better response is to take the time to really understand the issue and work to keep the sculptures, buildings, and objects that are in the public domain out of a fake copyright fog. Copyright protection lasts long enough – a combination of fear and laziness should not be allowed to pull works out of the public domain.

Bonus: Today’s Copyright Laws Are Designed To Make Lawyers Overly Cautious

Many lawyers are cautious by nature, but there are elements of copyright law that gives them an extra incentive to be even more cautious than usual. Specifically, a quirk of copyright law can make monetary damages balloon unusually quickly in infringement cases.

In order to get money in most civil cases you need to show your damages. Get hit by a car? Show the court your medical bills and lost wages. Painter paint your wall hot pink instead of staid beige? Show the court how much it cost you to get the work redone.

Copyright law is different when it comes to damages. A copyright holder can sue for actual damages, just like the person hit by a car or with a bad paint job. But they also have the option to sue for what are called “statutory damages.” Instead of pointing to the actual cost of infringement (that illegal download of a song deprived the artist of $0.99), a copyright holder can just point to an amount that is written into the text of the law to serve as the value of the damages. That amount can be in the six figures for a single infringement (that’s how infringing 24 songs can result in a $1.5 million damages award).

Among other things, the threat of these statutory damages makes lawyers super cautious around potential copyright infringement claims. Even if he was infringing, the actual cost of Fisher making unauthorized copies of the sculpture would likely be no more than a few hundred dollars (if that). Faced with that kind of liability, a lawyer may decide to take a bit of a risk and err on the side of public access. But in the face of hundreds of thousands of dollars worth of liability, a lawyer has to be pretty sure before saying “yes,” even if they start from the assumption that the work is in the public domain. And getting that sure can take a lot of time.

 

Rep. Goodlatte’s Committee is working on updating copyright law this year
Rep. Goodlatte’s Committee is working on updating copyright law this year

Fortunately, there may be an opportunity to change this. Congress is taking a serious look at updating copyright laws during 2015, and groups like mine will be working hard to get statutory damages reduced or eliminated. That will make it easier for people to access works that are in the public domain by significantly reducing the cost of errors. Keep your eyes open for more discussion of this in the coming months.

* It is actually home to casts of two sculptures: Moses and David. While this post focuses on Moses, you can rest assured that the analysis also applies to David.

20 thoughts on “3D Scanned Statue Copyright Debacle: How A University Got It Wrong

  1. Quick, lets get a few more folks out there to scan them. Even relatively low-poly scans using the free Autodesk software and a camera might be enough to raise the discussion again, hopefully with the result of the original scanner being comfortable releasing his good-quality scans again.

  2. Has anyone from Augustana College responded to this analysis? They might want to take advantage of the opportunity to become better-educated about copyright law and avoid becoming yet another case study in bad reactions to new technology.

    1. I was also curious as to why the reporter was too lazy to speak to anyone from Augustana College, a place inhabited by lazy people, and get their side. In fact, I feel so lazy after reading this article that I’m going to actually log off the internet. Now THAT is lazy, my friends

      1. If you read the byline you would notice that he is not a reporter but works for an advocacy group. It’s an opinion piece not investigative journalism.

        1. Hi – reporter/advocate here. I actually did talk to the representative from Augustana College who reached out to Jerry. I wanted to make sure that I understood exactly what their concern was with the scanning. Unfortunately, the representative was unable to articulate anything more specific than a vague copyright-related unease. I wanted to verify their concern for myself before I described it as “unspecified (and ultimately nonexistent) mixture of copyright and other intellectual property rights concerns,” and after talking with them felt that characterization was fair.

          That being said, I am absolutely an advocate for people not making up pretend copyright concerns and then using those concerns to prevent perfectly legal activity. So it is completely reasonable to read this article in that light.

  3. This is no different than the NY Met saying you can’t take photos of the Gutenburg bible they have on display, first they tell you no flash. When you say my DSLR doesn’t have a flash mounted the invoke copyright and WILL escort you out with vague threats. Many other museums and such restrict photography on general “principle” (or lack thereof).

    1. I’m not sure about how the Met actually handles this, but it is important to keep a distinction in mind: it is one thing for a museum or college (or anyone) to stop you from making a copy of a 400+ year old book because of copyright concerns – that’s bogus. However, it is another for them to establish a set of rules for people they allow in the museum – that’s reasonable. As long as their prohibition on flash photography isn’t based on a copyright concern, it is substantively different than this instance.

      1. I believe I stated that was their second line of defense when I showed them the camera had no flash.

      2. From metmuseum.org/visit/plan-your-visit/visitor-tips-and-policies
        “Still photography is permitted for private, noncommercial use only in the Museum’s galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever.” Lame and difficult to enforce — particularly when the Met encourages people to take and publish photos of their collection: twitter.com/metmuseum/status/558673283873140736

        1. Yeah, that’s a harder one. Thanks for looking that up Cosmo, and sorry that I misread your original comment Jonathan.

          I’m going to assume for the purpose of this comment that everything in the permanent collection is in the public domain, because that sets all of the copyright questions aside. On one hand, the Met is free to set rules like “no photos” simply as a condition on behavior – it is their house and they can decide what people are allowed and not allowed to do.

          The strange part about the restriction is that it is tied to intent. You can take a picture, as long as you are doing it for a noncommerical purpose. But what if you take it for a noncommerical purpose and then decide years later to sell it? Or, even better, what if you take it for noncommerical purposes, share it under a CC-attribution license, and someone else starts selling it?

          I suspect that rule is more the result of an internal compromise (“we can’t stop people from taking pictures!” vs. “people are capitalizing on our collection without compensating us!”) than any individual plot to draw those lines. Which, of course, doesn’t make it any less lame. But if it was a compromise that resulted in a rule that allowed some pictures inside the museum it might not be the worst thing in the world (while being far from an ideal outcome).

    1. At one point Zahi Hawass (erstwhile culture minister for Egypt) was making the argument that they “owned” copyright on the pyramids, i.e., you could only take pictures of them with their (his) permission, and couldn’t make any money of them. Egyptian law didn’t support that craziness any better than American would.

  4. Doesn’t the US have a law on misrepresentation? Why doesn’t he ask them for damages for the waste of his time? To say that it was not malevolently malicious does not mean that it was not carelessly malicious – because it is an act of malice to claim someone cannot act in freedom. It was a negative act, not a poitive one.

  5. Great piece, but one clarification in the remedies section: actual damages are the cost to the university in lost sales or market due to the unauthorized copies, not the cost to Fisher of creating them. With no market, and no sales, there couldn’t be any actual damages (assuming an unregistered copyright, which I agree, is dubious).

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Michael Weinberg

In his spare time, Michael is the President of the Board of the Open Source Hardware Association (OSHWA) and the General Counsel of Shapeways. Despite that, nothing in this article is OSHWA’s or Shapeways’ fault, and it certainly isn’t legal advice. You can find Michael online @MWeinberg2D and at michaelweinberg.org.

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