from the broken-systems dept
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.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:
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.
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.
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.