College Claims Copyright On 16th Century Michelangelo Sculpture, Blocks 3D Printing Files

from the broken-systems dept

For many years we’ve been warning that intellectual property wars over things like music and movies were just a preview to the sort of insanity that would come about when 3D printing goes mainstream. We’ve seen some copyright takedowns of 3D printed objects in the past, but here’s an absolutely crazy one.

Jerry Fisher, a photographer in Sioux Falls South Dakota, was interested in 3D printing and 3D image capture. So he went and photographed two local bronze casts of Michelangelo statues, one of Moses which is on display at Augustana College and is co-owned by Augustana and the City of Sioux Falls, and another of David, which is in a local city park. He documented his efforts to take the photos and turn them into 3D printer plans. However, the folks at Augustana College demanded that he stop, arguing a bizarre mix of copyright and… “we don’t like this.” Fisher asked the city of Sioux Falls for its opinion and got back a ridiculous response:

Fisher took the fight a bit further to the city, where he was informed that the photos were probably not a problem, but transforming them into models (especially if they were to be sold) could be a copyright violation. Attempting to get the issue of contemporary photogrammetry into the light, Fisher pointed out that the statues are in the public domain ? not to mention their age ? or true owner of the copyright on them. What is the actual law on what can and cannot be done? After getting nowhere with the entities who started the potential battle, Fisher really had no answers.

Even while Fisher seems to recognize that there’s no copyright issue here, fearing liability, he apparently still removed his images and plans from the internet. As Public Knowledge’s Michael Weinberg explains, there is absolutely no legal basis whatsoever for the demand:

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.

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.

As Weinberg notes, there was probably nothing nefarious in the minds of whoever at Augustana made the original request. Rather, they took the lazy way out — and the one that contains a lot less legal risk. If you’re unsure, just say, “Hey, you can’t do this or you might get in trouble,” even if that’s not true. And, further, he notes, one of the big problems with copyright law is that its statutory damages encourages much more risk avoidance than normal, and that’s a real problem:

Many lawyers are cautious by nature, but there are elements of copyright law that give 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.

Of course, the other reason crap like this happens is the ridiculous belief — often driven by propaganda from the legacy copyright industry — that every bit of cultural content must be owned by someone. The public domain is something to be shunned or denied at every turn. And, as a result you get crazy stories like this one.

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Comments on “College Claims Copyright On 16th Century Michelangelo Sculpture, Blocks 3D Printing Files”

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48 Comments
Anonymous Coward says:

Re: Re:

–Why did Michelangelo bother creating so many pieces of art before copyright law was invented.

He was offered compensation to create many of his works.

I’d offer the movie studio $5 compensation for a copy of their DRM free movie that I can use on any device I own.
But they decided not to create that so I get them for free from pirates.

David says:

Re: Re:

Why did Michelangelo bother creating so many pieces of art before copyright law was invented. I’m confused. Is he an exception to the rule?

Not at all. It is just that the cost of copies was much higher then. In particular faithful copies.

It is interesting to see how this worked out in Roman times: the Romans “mass-produced” copies of Greek sculptures (particularly those of famous artists), and it is striking how much more crude those copies are if you compare, for example, hands, feet, and tunics.

In a similar vein, around the turn of the 20th century, a lot of violins with labels “copy of Stradivarius” or even just straightforward Stradivarius labels (as well as several other famous violin maker names) were being produced in mass manufacture on the Czech/German border. Some of those are actually pretty ok (if, and that’s a big if, they were kept in reasonable shape since then) since even when pressed for time, the violin builders were competing among each other and improving. And some of them, after starting their career under such circumstances, later became independent violin makers and produced more notable instruments.

Of course, none of those copists had access to 3D printers.

That One Guy (profile) says:

Re: Re:

1) Going to court is ridiculously expensive, even if you win.
2) Due to statutory damages, if your luck doesn’t hold out, and you get a judge to find against you, you’re suddenly either on the hook for tens of thousands, if not more, or an appeal with no guarantee that sanity will prevail there either, and even if it does, if going to court once if insanely expensive, doing so twice is even worse.

mattshow (profile) says:

This article reminds me again of what a difference statutory damages can make. In Canada, statutory damages actually serve to discourage copyright litigation: in many (but of course, not all) cases, they’re set so low that the money a litigant might be able to get out of a lawsuit is less than what their lawyer’s bill would be. This really discourages suing unless you can prove substantial actual damages.

(And yes, this is true even though we have a costs system, where the losing side has to pay part of the winning sides legal fees. Even when you win, you never get 100% of those fees covered).

Anonymous Coward says:

so now it’s basically been established that what Fisher was doing was perfectly legal and he was completely in the right, has he had another go at doing what he attempted previously, this time with some proof of no wrong doing to show the ‘whoevers’? perhaps a legal document that put the ‘stoppers’ firmly but nicely in their place would be good, otherwise the ‘stoppers’ everywhere just get away with what they want, even though not legal!

Anonymous Coward says:

physical rights

This situation is similar to institutions claiming “physical rights.”

Survey of Copyright Statements on Library Digital Collections.
As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee to license an image for commercial use…
http://crl.acrl.org/content/70/4/371.full.pdf

When the copyright to a film has expired, then the film is considered to be in the public domain. This means that if you have a film in your collection which is no longer covered by copyright, you are free to use it without the previous copyright holder’s permission. It does NOT mean that someone can come and freely use a film in your collection without abiding by your institution’s rules—you own the physical rights to the film and can control its use. Thus, if you have a film in the public domain, you can still charge a use fee if a filmmaker wishes to use it in their production or require that the filmmaker must follow the rules of your institution.
http://www.lib.washington.edu/specialcollections/collections/film-preservation-manual/

10. Why do I have to pay the Smithsonian Libraries a fee for use of public domain images?
As the physical rights holder of this material, most of which is in the public domain for copyright purposes, Smithsonian Libraries charges a usage fee…
http://www.sil.si.edu/imagegalaxy/imageGalaxy_About_FAQ.cfm

HC does not charge for quoting from the collections, but there may be fees associated with image use. Requesters should also be aware that while Baker Library holds the physical rights to these materials…
http://www.library.hbs.edu/newsletter/archives/2006-04-topstory.html
The undersigned assumes all responsibility and any attendant liability for copyright infringement or violation of other rights of third parties that may arise through use of the requested materials, and further agrees to indemnify and hold harmless The Detroit Public Library from and against any and all damages, claims, expenses, and other liability, including reasonable attorney’s fees, arising out of or related to use of the requested materials. In most cases, the Library only holds the physical rights to the images requested.
http://www.detroitpubliclibrary.org/sites/default/files/Special%20Collections%20Reproduction%20Order%20rev.11-6-13.pdf

Although Cushing Memorial Library and Archives possesses the physical rights to the materials in its collection, literary and artistic property rights normally reside with the creator or creator’s estate…  It is the responsibility of the researcher to obtain the necessary permissions prior to publication.  Cushing reserves the right to require proof of such permission. 
http://cushing.library.tamu.edu/services/duplication-services.html
The Ross-Blakley Law Library at Arizona State University retains all physical rights to images and documents in this collection. Images and documents… may not be reproduced for profit or altered without the express written consent of the Ross-Blakley Law Library.
http://azmemory.azlibrary.gov/cdm/contributor?colln=asuross

Physical rights are retained by the Earl K. Long Library, University of New Orleans.
http://library.uno.edu/specialcollections/inventories/164.htm

Physical rights of the items in this collection are retained by the Mill Valley Public Library, Lucretia Little History Room, or are protected by copyright. Use of this item requires permission from the Mill Valley Public Library, Lucretia Little History Room.
http://www.millvalleylibrary.net/historyroom/collections/items/show/237

As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee… Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used.
http://www.suffernfreelibrary.org/documents/LicensingandImageReproductionPolicy.pdf

CUL holds the physical rights to all CUL images in The Commons… It is our policy to charge licensing fees for commercial use of these images, to help fund our ongoing efforts to care for, preserve, and expand our physical and digital collections.
http://digitalcollections.smu.edu/all/cul/flickr/

The Huntington Library retains the physical rights to the material. In order to quote from, publish, or reproduce any of the manuscripts or visual materials, researchers must obtain formal permission from the office of the Library Director, in addition to permission obtained from any copyright holders.
http://www.oac.cdlib.org/findaid/ark:/13030/c8fn17qs/entire_text/

Permission is for non-exclusive, world-wide rights for a single edition in a single format and a single language for five years. Fees for reuse, or for use in other editions or media, must be requested separately. Permission is for physical rights; users may have to negotiate copyright separately with the copyright holder.
http://library.upstate.edu/collections/history/descriptions/
The undersigned expressly agrees to the Terms and Conditions set forth by Bishop Museum and assumes all responsibility and any attendant liability for copyright infringement or violation of other rights of third parties that may arise through use of the requested materials, and further agrees to indemnify and hold harmless Bishop Museum, its directors, officers, employees, and agents from and against any and all damages, claims, expenses, and other liability, including reasonable attorney’s fees, arising out of or related to use of the requested material. Bishop Museum only holds the physical rights to the images requested.
http://www.bishopmuseum.org/research/library/pdf/OrderForm.pdf

New York Public Library
The Library holds the physical rights only to most materials. The Library does not grant written permission for any type of use of reproductions taken by readers unless it holds copyright to it.
http://www.nypl.org/help/about-nypl/legal-notices/photography-photocopying-policy

Anonymous Coward says:

Would be a much more informative discussion if the author of the original article provided more than just hearsay in support of his opinion concerning copyright law. Nowhere is there any discussion about how these statutes came to be so that an assessment can be made if they are in fact true copies of the originals (remember, even slight changes to originals can result in a new, original work for purposes of copyright law). Similarly, much is being attributed to city and college personnel, but copies in whole or relevant part of correspondence are not provided that substantiate what is being attributed.

This is not to say that the ultimate conclusions are wrong, but only that conclusions not fully supported by verifiable facts are not worth very much.

John Fenderson (profile) says:

Re: Re:

“(remember, even slight changes to originals can result in a new, original work for purposes of copyright law)”

This is true, but those slight changes must result in a work that is transformed. If you make a copy of a work that is identical under normal viewing/listening conditions (such as this statue), then a new copyright will not attach.

Anonymous Coward says:

WHAT?!

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.

And he still managed to make a living? That can’t be true because we all know without copyright every artist, musician, scientist… basicly everyone would starve to death. The whole world would be nothing but a wasteland. Saying that a society could exist and flourish without copyright is close to sacrilege.

David says:

Re: WHAT?!

At Michelangelo’s time, the best copies of a Michelangelo artwork were done by the likes of Michelangelo rather than machines. If you have to pay an artist anyway, why not pay for another original rather than a copy?

Copyright became important with the advent of the printing press. Pretty soon DRM like hand-drawn illuminations in otherwise printed bibles became customary.

Killercool (profile) says:

Re: Re: WHAT?!

… That’s not drm. That’s added value. When anyone and everyone has access to the same content, you have to make your version worth more than free (or, since this is a physical good we’re talking about, the cost of production).

Besides, illuminated texts WAY predate the modern printing press (by ~500 years, even for the Chinese one).

Anonymous Coward says:

physical rights

This is similar to the claim of physical rights by some institutions.

Survey of Copyright Statements on Library Digital Collections.
As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee to license an image for commercial use…

Washington State Film Preservation Manual.
When the copyright to a film has expired, then the film is considered to be in the public domain. This means that if you have a film in your collection which is no longer covered by copyright, you are free to use it without the previous copyright holder’s permission. It does NOT mean that someone can come and freely use a film in your collection without abiding by your institution’s rules—you own the physical rights to the film and can control its use. Thus, if you have a film in the public domain, you can still charge a use fee if a filmmaker wishes to use it in their production or require that the filmmaker must follow the rules of your institution.

Smithsonian Libraries Image Galaxy.
10. Why do I have to pay the Smithsonian Libraries a fee for use of public domain images?
As the physical rights holder of this material, most of which is in the public domain for copyright purposes, Smithsonian Libraries charges a usage fee…

Harvard Business School. Article: Copyright and permissions.
HC does not charge for quoting from the collections, but there may be fees associated with image use. Requesters should also be aware that while Baker Library holds the physical rights to these materials…
Detroit Public Library
The undersigned assumes all responsibility and any attendant liability for copyright infringement or violation of other rights of third parties that may arise through use of the requested materials, and further agrees to indemnify and hold harmless The Detroit Public Library from and against any and all damages, claims, expenses, and other liability, including reasonable attorney’s fees, arising out of or related to use of the requested materials. In most cases, the Library only holds the physical rights to the images requested.

Texas A & M, Duplication Services.
Although Cushing Memorial Library and Archives possesses the physical rights to the materials in its collection, literary and artistic property rights normally reside with the creator or creator’s estate…  It is the responsibility of the researcher to obtain the necessary permissions prior to publication.  Cushing reserves the right to require proof of such permission. 

The Ross-Blakley Law Library at Arizona State University retains all physical rights to images and documents in this collection. Images and documents… may not be reproduced for profit or altered without the express written consent of the Ross-Blakley Law Library.

Physical rights are retained by the Earl K. Long Library, University of New Orleans.

Physical rights of the items in this collection are retained by the Mill Valley Public Library, Lucretia Little History Room, or are protected by copyright. Use of this item requires permission from the Mill Valley Public Library, Lucretia Little History Room.

Suffern Free Library
As the physical rights holder of this material, most of which is in the public domain for copyright purposes, the Library charges a usage fee… Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used.

SMU Central University Libraries. The Commons on Flickr.
CUL holds the physical rights to all CUL images in The Commons… It is our policy to charge licensing fees for commercial use of these images, to help fund our ongoing efforts to care for, preserve, and expand our physical and digital collections.

The Huntington Library retains the physical rights to the material. In order to quote from, publish, or reproduce any of the manuscripts or visual materials, researchers must obtain formal permission from the office of the Library Director, in addition to permission obtained from any copyright holders.

Upstate Medical University. State University of New York. Health Services Library.
Permission is for non-exclusive, world-wide rights for a single edition in a single format and a single language for five years. Fees for reuse, or for use in other editions or media, must be requested separately. Permission is for physical rights; users may have to negotiate copyright separately with the copyright holder.

The undersigned expressly agrees to the Terms and Conditions set forth by Bishop Museum and assumes all responsibility and any attendant liability for copyright infringement or violation of other rights of third parties that may arise through use of the requested materials, and further agrees to indemnify and hold harmless Bishop Museum, its directors, officers, employees, and agents from and against any and all damages, claims, expenses, and other liability, including reasonable attorney’s fees, arising out of or related to use of the requested material. Bishop Museum only holds the physical rights to the images requested.

New York Public Library
The Library holds the physical rights only to most materials. The Library does not grant written permission for any type of use of reproductions taken by readers unless it holds copyright to it.

Anonymous Coward says:

Re: Re: physical rights

Actually, there is a significant similarity in that in each case the material object is the property of a party, and that party is choosing to impose contractual terms go earning access to the object by others.

BTW, “likeness” is associated with visual/auditory perceptibility and the like, and this is a characteristic of copyright law. It is already conceded that copyright law likely does not apply (but see caveat earlier about possibility of derivative work). This is strictly a matter of contract law, and it is important to understand that contracts can arise in many ways that do not involve formal written documents signed by the parties.

John Fenderson (profile) says:

Re: Re: Re: physical rights

“and that party is choosing to impose contractual terms go earning access to the object by others.”

But then it would be a simple contract violation, not a copyright violation. The college would still not gain any rights to the photographs as a result of the contract violation. The photographer would simply be ejected from the premises.

Creative Type (user link) says:

Art and Copyright Law

This blog entry below addresses the same questions but also has links to two Federal District Court rulings that essentially established that copies of items in the Public Domain can’t be copyrighted, even if they are made in different materials, sizes or have trivial visual differences.

http://dearrichblog.blogspot.com.au/2014/10/let-my-copyright-go-3d-michaelangelo.html

The Michelangelo bronzes in question were given as a gift to both the City of Sioux Falls & Augustana College in the early 1970s by Mr. & Mrs. Thomas Fawick. The bronzes were created from molds made in the 19th century directly from the original masterpieces, so aside from being in bronze instead of marble, they are precise copies.

Under the precedent set by those two rulings, unless a public domain item is substantially altered as to be clearly different from the original item, it doesn’t meet the minimum threshold for copyright protection. This is why souvenir models of the Statue of Liberty have noticeably different proportions (a larger bosom, the right arm is thrust aloft much more straight, the figure is more Barbie in proportion to the matronly physique of Lady Liberty, etc) in order to get a copyright.

Copyright law is byzantine at the best of times and badly broken now. What Congress should do is streamline the copyright laws and stop making exceptions for corporate entities like Disney or letting big pharma slap new copyrights on drugs that are just about to expire by tweaking the dosage. There is no incentive to be creative when a few big players own a huge part of the copyrights. It is also hard to be creative when vaguely worded copyright applications can be interpreted any way a lawyer or corporation wants if they’re looking to snuff out competition or bleed a competitor.

As for artwork, the current copyright law states that anything an artist creates is protected for the lifetime of the artist plus 70 years after they die. While there is little to stop a determined person from using the new technology of photogrammetry to recreate a contemporary sculpture on display in public spaces, an artist could sue like the MPAA has for compensation.

A recent example would be Robert S. Davidson suing the US Postal Service for copyright infringement on his Las Vegas replica of the Statue of Liberty.

http://www.washingtonpost.com/blogs/federal-eye/wp/2013/12/03/sculptor-sues-u-s-postal-service-says-lady-liberty-stamp-of-his-statue-issued-without-his-permission/

(Mr. Davidson should be careful however, as the changes he asserts he made to his version of Lady Liberty could be interpreted as “trivial” and not meeting the threshold of copyright. Then there is the odd coincidence that his replica is strikingly identical in proportion, detail and measurement to a widely available 3D model that itself was copied from a 3-foot souvenir replica made by Colbar Arts –http://www.colbarart.com/images/2statues.jpg — which itself is copyrighted. It would take a minimum of effort to use Google to find the 3D model, download it freely and simply scale it up to whatever size he desired before moving on to production. He very likely did little actual hands on sculpting if this was the case).

The only people who will benefit from this mess are the lawyers.

To put it another way, Michelangelo’s body of work and everyone before and after him up until 1945 is out of copyright protection and in the public domain (with the exception of Disney characters, etc). Making a copy and asserting a copyright on it doesn’t pass muster now.

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