Auguste Rodin's Sculptures Are In The Public Domain; 3D Scans Of Them Should Be, Too

from the free-the-scans dept

Auguste Rodin is without doubt one of the greatest sculptors in history. Equally without doubt, his works are now in the public domain, since he died in 1917. Unfortunately, the situation in France is a little more complicated, for reasons the artist and public domain campaigner Cosmo Wenman explains:

Shortly before his death, Rodin willed his estate to the French government, which created the Musée Rodin and assigned to it droit moral (“moral rights”) in Rodin’s oeuvre. By these rights the museum is permitted under French law to manufacture and sell a limited quantity of modern, posthumous bronze casts and represent them as “original” Rodin works. Musée Rodin earns considerable income from sales of such posthumous casts, as well as unlimited, simple reproductions.

Musée Rodin’s moral rights apply only within French jurisdictions, and only in very limited circumstances. They do not impinge on the public domain status of Rodin’s works, nor on the public’s right to freely copy them, even within France.

Wenman believes that museums, art galleries and private collectors around the world should make 3D scans of important public domain works and release them freely, thereby becoming “engines of new cultural creation”. The Musée Rodin disagrees, presumably because it is concerned that its monopoly on “original” posthumous casts might be devalued. As a result, it has been fighting for some years Wenman’s efforts to obtain the museum’s 3D scans of Rodin’s works through the courts.

Wenman has tweeted an update on his lawsuit. One piece of good news is that thanks to his legal campaign, the scans carried out for the Musée Rodin’s of two famous works – “The Kiss” and “Sleep” – are now freely available. Even better news is that Wenman has discovered the Musée Rodin has scanned its entire collection at high resolution. As he says: “These documents are of world wide interest and immeasurable artistic, academic, cultural, and commercial value. I am going after all of them, for everyone.”

It’s regrettable that some museums and galleries are still resisting these attempts to liberate public domain works. When those who are supposedly the guardians of society’s cultural patrimony are fighting to stop people from having full and free access to it, it’s clear that copyright’s poison, based on ownership and exclusion, has entered deep into their souls.

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Originally published to the Walled Culture site.

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Comments on “Auguste Rodin's Sculptures Are In The Public Domain; 3D Scans Of Them Should Be, Too”

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36 Comments
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TheComputerGuy says:

So many problems here.

Moral rights: these “rights” are BS. Nobody deserved any rights to things they create. We as a society grant these rights to create economics incentives, nothing more.

Also, what even is the point of a museum if not to spread and share culture.

My hope is that one day we will fix copyright and all this will be in some comedy movie.

That One Guy (profile) says:

Gotta love those conflicts of interest

When those who are supposedly the guardians of society’s cultural patrimony are fighting to stop people from having full and free access to it, it’s clear that copyright’s poison, based on ownership and exclusion, has entered deep into their souls.

The money is probably a much bigger impact on their behavior here, after all if anyone can create replicas then that makes it a lot easier to get one without paying them for it.

Wyrm (profile) says:

Wenman believes that museums, art galleries and private collectors around the world should make 3D scans of important public domain works and release them freely

I kind of disagree. This would be the right thing to do and there is no legal way to forbid these digital models from being created and broadcasted by anyone willing to do so, but that doesn’t mean someone should be obligated to do it.

Now, entities that receive public funds (public organisations or private individuals with public grants) could – and maybe should – get their funds (in part or in whole) conditioned to making public domain art available in digital format. But I would see that as a contractual obligation rather than a legal one.

If that is Wenman’s idea, I can agree with him. If he wants an outright law to enforce it, I think that’s close to – if not actual – compelled speech, which I understand most of us here are against.

Rocky says:

Re: Re:

If that is Wenman’s idea, I can agree with him. If he wants an outright law to enforce it, I think that’s close to – if not actual – compelled speech, which I understand most of us here are against.

Compelled speech is a finicky thing to talk about when aren’t limited to the US. Regardless, I find it hard to believe that forcing government entities (or museums that are partly funded by tax-money) to cough up information that is in the public domain can be called compelled speech. Also, any scans is just data which in most cases isn’t copyrightable.

Of course, if it’s a private museum that’s run without government funding it’s probably compelled speech.

Wyrm (profile) says:

Re: Re: Re:

And that’s why I wrote about the idea of conditioning public funds to availability.
If you’re a private entity running without public funds, it’s entirely up to you.
If you’re a public entity or you get public grants, then this can be contracted to include making digital representation of the art they are safekeeping more available.
I just don’t think that adding this to copyright law or somehow interpreting current law this way is the solution.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re:

The compelled speech angle is a concerning one but something that just came to me is that if you can just stash something that was slated for the public domain you could effectively completely sidestep fulfilling the creator’s half of the deal that is copyright, since you’d have used copyright to secure the exclusivity of a work while that lasted and then when it came time to release it to the public you just decide that nah, it’s staying with you.

Copyright law may be one-sided and broken as hell currently but unless the various governments and politicians want to completely drop any pretense that it’s meant to serve creators and the public there really needs to be some way to ensure that both parties benefit from it and one side can’t just take advantage of their half and then refuse to honor the ‘deal’ when it comes time to return the favor.

Anonymous Coward says:

Re: Re:

I would agree with you otherwise, but the French government created the museum and has an obligation to make the works available for the public. By allowing the museum to limit meaningful access to the sculptures (and consequently to put archival of the works in digital form at risk), the government has stifled use of public domain works.
I find it silly that every image gets copyright. A scan, high-quality or otherwise, hardly contains any creative expression, and certainly not enough expression to trump the public good.

Andy J says:

This is NOT about copyright

You guys need to stop seeing this particular issue from the American point of view of copyright as an economic bargain between the artist and the public interest. The majority of European countries (less the UK and Ireland) put the honour of the artist at the heart of their concept of author’s rights, hence their emphasis on moral rights, which US law chooses to barely acknowedge. It’s an apples and pears situation.
And in any case, despite the references in Glyn’s piece to copyright, public domain etc, this is all about who can control access and nothing at all to do with either copyright or moral rights as legal or ethical concepts.

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Wyrm (profile) says:

Re: This is NOT about copyright

Moral rights can’t be used to argue on financial grounds. Which is apparently what the museum tried to do anyway.

So either they argue "droit patrimonial", which they can’t because it expired.
Or they argue "droit moral", which they can’t because it’s all about money.

They lose either way.

Wyrm (profile) says:

The Musée Rodin disagrees, presumably because it is concerned that its monopoly on “original” posthumous casts might be devalued.

Poor excuse there. Of course the originals would be devalued.

But that’s because of artificial scarcity derived from the monopoly that became unenforceable as the copyright (or the french equivalent "droit patrimonial") expired. The "droit moral" never expires, but doesn’t give any right to prevent manufacture and distribution of copies of a work on financial grounds. (It only covers the prevention of uses that the author doesn’t or wouldn’t have agreed on for moral reasons. e.g. using a song as a fascist anthem.)

So, the Musee Rodin is completely out of legal arguments if that’s what they try to argue. I don’t think they should be compelled to produce the scans, but this argument carries no weight at all.

Anonymous Coward says:

Re: Devil's Advocate's poisition

So two things to consider.

Who is paying for these 3D scans?

Costs to develop the technology. Costs to deploy the technology. And the result is given away free?

Okay. Assume the public is willing to pony up for a scan of The Thinker, in order to get it into the public domain. What of the other, less well known works of Rodin? What of the other, less well known works of less well known scuptors? Will the public pony up for those as well? In some cases, perhaps super-fans would. Or maybe they would simply make the scans and keep them private, because they paid for them (and they can).

Point 2: Museums cost to operate. If they are being supported by income from replicas, and you take that income away, either you replace the income or the museum declines or disappears, and you end up with headlines like "Masterpiece found in barn after being lost for 60 years".

So, if you’re going to take a stance on principle, consider the consequences of that stance. Rodin was a superstar. The Musée Rodin would almost certainly survive. For a good while, at least. Lesser museum? Good question.

Bonus point: We’re not all that far from where AI can analyze a painting, allowing mechanical reproduction of brush strokes. "Super forgeries" of paintings, if you like. But the precise equivalent of 3D models of sculptures. Do any of your opinions change? Do any of the forces at work change?

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re: Devil's Advocate's poisition

"Costs to develop the technology."

Are the museum actually developing the technology? If not, who cares? If so, it’s somewhat problematic that clawing back the costs involves walling off works of art that belong to the public in a new way, and it might be better if they didn’t and worked on something that’s closer to the idea of preserving art for the public.

"And the result is given away free?"

Lots of things are given away for free. Sometimes they’re not even "free", they’re just supplied in a way that doesn’t depend on an upfront charge to anyone who might want to experience the end result. Sometimes this free stuff drives traffic and interest for the things that aren’t free.

"If they are being supported by income from replicas, and you take that income away"

Nobody would block the museum from selling replicas, and nobody would stop the prestige or support of having bought it direct from the museum. All that would happen is that they would not be the only place to buy such a replica. Public domain does not mean that you lose the ability to make money, you only lose the monopoly of being the one person allowed to do so – and many. many people who supply replicas of public domain works still make a living.

"What of the other, less well known works of less well known scuptors? Will the public pony up for those as well?"

"Lesser museum?"

I damn well hope so, instead of funnelling money into supporting museums and works that need no public help to survive.

Anonymous Coward says:

Re: Re: Devil's Advocate's poisition

  1. The scans already exist.
  2. They can simply allow those with the tech to scan it at an unobtrusive hour, if that helps.

If the problem is that replicas literally support the existence of the museum, there is no reason for anyone to be obligated to buy into that business model. But what people do tend to buy into are scarcities like "hey this high-quality, very nicely cast bronze replica is from the official museum, and the proceeds help keep the museum open".

Anonymous Coward says:

Re: Re: Devil's Advocate's poisition

It’s highly unlikely that the museum developed the scanning technology. The museum will have made back whatever money it spent making the scans by now.
By allowing the museum to hold its monopoly over access to the scans (and to put archival of the data at risk), the French government has stifled the public’s ability to make use of the works. Most people can’t go off of the physical sculptures and low-quality photos alone. The French government made a mistake, so it should buy the scans and release them in the public domain.

Anonymous Coward says:

Re: Re: Devil's Advocate's poisition

Plenty of people will still want to see the original works in person even if the museum were to release the scans in the public domain. Authenticity is valuable, for one reason or another. The museum can still make money off of admissions fees and sales of small goods (such as souvenirs).

PaulT (profile) says:

Re: Re: Re: Devil's Advocate's poisition

"Plenty of people will still want to see the original works in person even if the museum were to release the scans in the public domain."

There’s pretty much nobody in the world who doesn’t know what the Mona Lisa looks like. Many even own prints, or other things made from the image of the painting. The Louvre remains one of the most popular tourist attractions in Europe, with the Mona Lisa being a primary reason most people go there.

Scans of sculptures aren’t going to stop people going to the museums and more than being able to buy a print to hang up on your office wall (or a free copy to use on your laptop’s desktop) stops people going to see paintings.

David says:

Disagree with "Public Domain"

"Public Domain" is a category of copyright. For a 3D scan of a Rodin sculpture, the sole copyrightable content in question should be from Rodin. The scan is a technical collection of data. There can be access restrictions to it like with any body of data, and you can put contractual restrictions for passing it on and enforce them. But copyright should just not apply at all separate from the sculpture itself.

So it’s not as much that the "3D scans should be in the Public Domain" rather than that copyright should not have anything to do at all with the scans, similar to a radiologist not being able to state copyright conditions (including Public Domain) to my X-rays.

nasch (profile) says:

Re: Re: Re: Disagree with "Public Domain"

So your wife is in the Public Domain?

OK, if you want to be pedantic:

‘The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.’

Is that a perfect definition? Not sure. If a collection of facts, or a 3D scan of a sculpture, is not copyrightable because there’s no element of creativity is it public domain? Or just not copyrightable?

PaulT (profile) says:

Re: Re: Re:3 Disagree with "Public Domain"

Well, that’s a can of worms….

While you can argue that the result of an automated process such as a 3D scan is not a creative work on its own (though I know many developers who will fight you to the death on the idea that creating the 3D scanning software is not a creative process), usually the process doesn’t end there. Quite often, people will take the result of the scan, and start editing to remove flaws in the scan, create textures and colouring, and start adjusting it beyond what the initial scan gave them. If the original work is damaged, they might expand on it to show how it would have looked originally, or might even introduce time lapses and animations to give context.

So, at what point does the work change from being the output of a program, to a creative effort that requires copyright protection? In the case of art that’s already in the public domain, the correct answer should be that derivative works created for museums and the like also fall under the public domain, but there’s always going to be someone with a profit motive trying to undermine that (not that profit isn’t possible under public domain, but monopolies like to not share..)

PaulT (profile) says:

Re: Disagree with "Public Domain"

""Public Domain" is a category of copyright"

No, it’s not. Public domain is the default state where all art belongs and used to immediately go to the moment it was produced. Copyright is an agreement by the public to waive this status for a limited amount of time in order to encourage and promote more work which will eventually enrich the public domain.

If your understanding is different to that, you’ve been listening to someone with a vested interest in robbing from the public domain indefinitely, and you should stop doing that.

Anonymous Coward says:

Here’s another scenario to compare with this:

If Mozart wrote a concerto and I perform it and record it, should the recording be in the public domain?

Seems to me a 3D scan is a recording of a public performance of the art.

Why should music have recording copyright on public domain works, and sculpture not have it?

Anonymous Coward says:

Re: Re:

Because a music performance is an interpretation of a piece of music, and copyright does not stop others from making their own recoding. For a sculpture, a 3d scan is more like the score, and unless put in the public domain, or the owner allowing others to take the photos needed to create a 3d scan. It is much easier for an owner to put their own scans into the public domain that have visitors trying the make their own scans. If the owner does not allow photography, or releases a scan, the public domain status of the work remains largely theoretical.

Rocky says:

Re: Re:

The difference is at one hand you have a creative process where the end result usually is copyrightable, scanning a physical object just produces data and is in no way a creative process.

The only caveat is that reproducing from data an object that is under copyright may be problematic depending on what you intend to do with the reproduction.

PaulT (profile) says:

Re: Re:

Bad analogy.

"Seems to me a 3D scan is a recording of a public performance of the art."

No, it’s not. It’s a photocopy of the sheet music. All you’re doing is mapping the geometric and spacial information about the sculpture, just as the sheet music for the concerto is information about what notes belong where.

Now, if you have a performance of the sheet music that’s a different ball game, because each member of the orchestra, the conductor, the acoustics and production of the venue, etc., all contribute to the end recording. Those are creative processes, hence the recording being copyrightable, but the sheet music remains public domain.

Same here. if you take the 3D scan of the sculpture and use it to create something else, edit it into something else that counts as a transformative work, then it’s possible that the end work would be copyrightable. But, the factual information contained in the scan itself should remain public domain.

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