Google Art Project: Copyright and Beauty

by Kenneth Crews on February 11, 2011

The Google Art Project, launched this month, is yet another ambitious and exciting project from the giant in the information delivery business. At one stunning website, any user may sweep breezily through masterpieces of art, or take the time to zoom in and study the details of each point and stroke. Google also deployed its “street view” technology to walk viewers through the galleries of seventeen museums of the world. I am a museum addict and an art lover. For me, Google is presenting sheer beauty wrapped in technological magic.

Enough gushing. Time to get to work. Google Art Project is a splendid manifestation of copyright tensions. At least four different players are standing in the corners of this copyright arena, and they are poised to grapple over four very different views and objectives. Actually, they have thousands of different perspectives all at once. Who are they? Artists asserting copyright. Museums attempting to control their collections. Google trying to get information to the world. Finally, the public just trying to learn from and delight in great art. 

It all starts with the artists. Hundreds of artists. Eventually thousands of artists. Walk through a museum, and the walls are filled with works from artists old and new. We admire the brilliance of Rembrandt, Picasso, and Koons. From a copyright perspective, artists have all the rights. From the moment they create original works that are “fixed” in any tangible medium—on canvas, sculpted from clay, or rigged in wire—the artworks have copyright protection. When a Jasper Johns appears on a poster, or a Jeff Koons balloon dog becomes a set of bookends, the artist may have (or maybe not have) the rights of control. As long as such artists hold valid copyrights, their works are not likely to be part of the Google Art Project for now.

“Artists” in the Google project, therefore, are usually long dead. They are not necessarily living people with paint and canvas. Koons is still alive and his lawyers are apparently speaking for him, but Rembrandt has been gone for centuries, and his legal rights have lapsed—at least in the U.S. On the other hand, Picasso is a tough call. He lived recently enough that many of his works are within copyright, but some of his early works have surely entered the public domain. Who can know for sure? The law on that issue is a mess, and determining the copyright status requires scrutiny of the law and the facts surrounding the creation and publication of each work one at a time. Some works are protected—others not. Many people may want to use a Picasso painting, but few have the resources to track its legal status. Nevertheless, the copyright does last for decades after the artist’s death, and the role of “artist” is subsequently played by heirs, executors, lawyers, and agents whose views may not match the motivations of the original creator of the aesthetic masterpiece.
Museums are another unsettled entry in this match up. Museums have a central mission to collect and preserve art and other cultural works, and to make them available to the public. Their approaches to that mission are widely diverse. Some museums want to regulate diligently how art is perceived and understood, serving as protector of the artist’s vision and resisting any actions that might undercut the integrity of the work. Other museums are eager to broaden access and open the collections to new visions and enjoyment. Straining that mission is the pressure for money. Museums often strive to control access and use of their collections, because they need to sell or license the uses. They simply need the money in this era of shrinking budgets. Posting images of great art on the Internet may be a terrific cultural initiative, but it might also interfere with the sales of posters and screensavers. Museums usually do not hold any copyright in the art, but they have something better: Keys to the front door. Google will not be able to make images of art and galleries without getting its ticket stamped.
By entering the museum doors with digitization gear in hand, Google surely had to negotiate what must have been heady tensions surrounding the rights and claims of artists and museums. Consider the two main features of Google Art Project. First, it presents extraordinarily high-resolution images of selected works of art. The art choices are fabulous stuff, but all are by artists who have been off this earthly orb for many decades or even centuries. Even their descendants no longer have valid legal claims—thus, copyright concerns duly avoided. Check. That leaves Google to tangle principally with the museums.
I suspect that the response from museums was widely varied. Some probably greeted Google with warmth, and others with suspicion. Surely some museums likely turned Google down flat, and others may join later. Museums do have a roster of issues to contemplate, including the tension between sharing content online, versus holding out for the sales. Gift shops are an increasingly important source of revenue, and museum officials no doubt wondered if giving away a detailed image of a Rembrandt would jeopardize sales of books, scarves, and calendars.
The decision to post images was probably an exercise of business judgment. By contrast, the second leading feature of the Google Art Project was probably more of a legal matter: The street-view tour of the museum. A virtual walk through the galleries is far less likely to compete with the museum’s financial wherewithal, but it does pose a more direct conflict with the copyright interests. When selecting artworks for detailed display, Google and the museums can choose works in the public domain. When walking through the museum, however, you capture images of all works on display, whether old or new, copyrighted or not.
The art images on the street view, however, are never completely satisfying. The resolution is moderate, the angles are distorting. One could genuinely argue that their appearance in these limited conditions is fair use. Google is good with fair use and has won a few major battles. But museums may not be as willing to try. Fair use is not as central to their objectives, as it might be for Google. Also, museums have an immediate interest in not jostling artists and their estates—gracious relationships are critical to building future collections. The solution? Fuzz. Take the Google tour of MOMA, for example, and you virtually approach a stunning van Gogh, but a few steps away is a patch of multicolored blur—a masterpiece enshrouded in legal suppression. The fuzz may be a nuisance, but it is actually a constructive tradeoff.
The tradeoff has greatest consequences for the fourth player in the arena—the public. Any ambitious project has to cope with constraints of all kinds. Copyright is but one challenge to the Google Art Project. The rights of artists (and heirs) exist. That is an inescapable fact. The legal rights of museums? Well, that is less clear, but museums do control the front door and attend to competing objectives. Google has the technological skill and the market prominence to cut deals that perhaps no other organization could accomplish. Compromise always beckons in group negotiations, and Google probably realized that it need to add a little blur, and generally stick with the public domain works, in order to enter the doors of multiple museums. One can always criticize the bargain and grovel about copyright law. Nevertheless, the resulting Google Art Project supports broadened public access to numerous works of art. A lot of art, with limits, is far better than no art. The public is unquestionably the clear winner.
Google Art Project allows anyone with an Internet connection to explore in breathtaking detail hundreds of important paintings (as well as some sculpture and mosaics). The resolution and quality offer insights that even a personal visit would often not afford. Thick sweeps of blue strokes on the distant hills by van Gogh. Elegant details of calm harbor boats by Turner. Of course the computer does not replace a real visit, but in the meantime I can enjoy the imposing stateliness of The Frick Collection and the vast grandeur in the The State Hermitage Museum. Not everyone shares my enthusiasm, and many museums deserve credit for putting their collections online long ago.
It is also true, this new project introduces yet an additional layer of copyrights. The FAQs on the website state a claim that the images are themselves protected by copyright apart from the underlying art. One can dispute that assertion. However, Google enables users to store, comment on, and share images. The FAQs include a statement of rights, but the Google Art Project supports access and some interactive uses, albeit with limits. To any extent that the works of art are made openly available to any online users, the public does benefit from this bargain.
Like most digital initiatives, the Google Art Project will grow and change. The debate over legal issues will continue. Copyright law only frames the start of the conversation; it does not dictate how the story must end. Hence, artists and museums will always be mixed groups and will never take only one position about facilitating access to their collections. They and Google will also most likely continue to explore possibilities, reconsider earlier views, and regularly reopen negotiations—all, one can hope, leading to even greater public access to more of the triumphant content that is within the great museums of the world.
I welcome your thoughts.
February 11, 2011


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