This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.
Question: Suppose an author has taken a picture of an ancient object and wishes to publish it. Must the author also get permission from the institution that owns the object? Put another way, does a group that owns an object have intellectual property rights over images of that object, no matter who takes the image?
Answer: The institution that owns the object certainly can control access to that object in order to protect it, or just because it wants to do so. But access is not intellectual property ownership. When you use the term “ancient object,” I envision an artifact such as a stone statute, piece of jewelry or some other artifact, and not a painting. In the past, museums often refused to allow photographing of paintings due to the potential for damage due to flashbulb use. We don’t really have that issue today with digital photography, however.
So, with an ancient object, a photograph is unlikely to damage the work, so that is not the issue. Again, in the past institutions such as museums sold photographs of objects in their collections and counted on that income. Today, however, more museums are recognizing that photographs of objects they own may be taken by anyone with a cell phone. Only someone who wants a very high quality photograph of the object is going to buy the ones they sell.
The institution does not have intellectual property rights in the object (which would be in the public domain, anyway). Their only interest is in preserving the work if photography would somehow damage it, and that is pretty unlikely with digital cameras. So, if the institution tries to impose restrictions on photography, argue with them!
Pocket Copyright Guide for Publishers by Laura N. Gasaway and edited by Iris Hanney contains information vital to the publishing community.