Original URL: http://www.theregister.co.uk/2007/12/27/how_to_copyright_michelangelo/

How to copyright Michelangelo

From the Borgias to Bill Gates

By Charles Eicher

Posted in Media, 27th December 2007 08:02 GMT

Some of the world's greatest artworks are turning into copyrighted properties.Five hundred years ago, Michelangelo painted the Sistine Chapel ceiling. Today, those images are copyrighted. How can ancient cultural icons become commercial properties, centuries after they fall into the public domain?

How this happened is a story that takes us from a Crusading Pope in the Borgias era, all the way to Bill Gates' mansion on the shores of Lake Washington.

Michelangelo's frescos of the Sistine Chapel are icons of religious art, drawing visitors from across the world. In 1508, Pope Sixtus IV commissioned the work as a monument to the glorification of God and himself. It was the practice of the rich and powerful (particularly those like Pope Sixtus, having acquired his vast power by warring on Venice) to fund great public works of art, to cement their personal legacy.

The ongoing argument between the Pope and Michelangelo over the long-delayed completion of the work is almost as legendary as the paintings. Fresco painting is a laborious and difficult process. The color is applied to wet plaster, once the color is applied, it cannot be altered, so every brushstroke must be painted perfectly the first time. Michelangelo's work is considered the exemplar; every art student is expected to study these frescos and be familiar with his techniques and methods.

But time will ravage any work of art, and over the years, the Sistine Chapel ceiling leaked, minerals leached through to the surface, and soot from votive candles darkened the paintings. Several restorations were done over the centuries, repainting some damaged areas, and sealing the frescoes with transparent glue. But with as the glue aged, the surface became darker, and the original painting became colorless and lifeless. In the late 1970s, the Vatican decided the ceiling needed a total restoration. You can clearly see how the colors suffered, in this photograph of "The Creation of Adam," the blue sky has darkened and the figures have turned an unattractive color of brown.

The Sistine Chapel restoration

Modern restoration has a new philosophy: it is more about conservation than restoration. Every brushstroke by the original artist's hand must be preserved. If a damaged section of the fresco must be filled in, it must look natural but be clearly marked as restoration. Previous attempts at restoration must be removed and replaced with modern work conforming to the latest scientific standards. Nothing must ever be done that is irreversible.

So the Vatican consulted the Getty Conservation Institute, who were well experienced in the restoration and conservation of world cultural and archaeological sites. It was decided that the layers of glue over the frescoes would be painstakingly removed by hand, a square inch at a time. However, the plan immediately drew criticism.

Some art curators believed that when the original frescos were completed, Michelangelo was dissatisfied with the bright colors, so he toned them down by painting over some areas with a transparent gray wash of glue and powdered charcoal. But it was impossible to be certain, as the glue sealant layers by previous conservators could not be distinguished from any original layer applied by Michelangelo. The glue could be removed easily, but it was all or nothing.

The Getty institute countered that scholars had been studying the murky, darkened images for so many decades that they had gotten used to them, they believed the frescoes had always been that way, but the new restoration would reveal the work as fresh as if it had just been painted yesterday. Perhaps that fresh work was washed over with glue by Michelangelo the next day, but once the restoration was done, it would be impossible to ever research this issue again. After much debate, the decision was made to proceed and remove all the glue.

Funding the restoration

But the worst problem with this painstaking restoration was the expense. It would cost the Vatican a fortune. They issued a call for public sponsorship, the Japanese TV network NHK stepped forward with a proposal. NHK would pay for the restoration, in return for exclusive film and publication rights. Harper's Magazine writer Eric Scigliano's 2005 report "Inglorious Restorations" asserts that NHK paid between $3 and $4 Million.

The Vatican could only license the copyrights of a public domain work due to an old quirk of copyright law. The original artwork may be in the public domain, but a photograph of that artwork may be copyrighted as a new unique work. The photograph taken today becomes a new copyrighted work with new intellectual property rights. Museums often charge for photographs of works in their collection, and publication royalties provide a modest income stream to fund conservation.

This assignment of copyrights separate from ownership of a work is a long established practice, commonly used by photographers and artists. A photographer might sell limited publication rights to a magazine or book that wishes to print his images, but he retains the copyright for himself so he can resell the image to other publishers. Some artists reverse the process, selling ownership of a painting or sculpture, but retaining reproduction rights and copyrights so he can republish it in catalogs or magazines. Some works are licensed by the estate of the artist, accruing revenue to his heirs.

So the Vatican/NHK deal worked to mutual advantage.

NHK would fund high resolution photographic surveys of the pre- and post-restoration frescos. The ceiling would be hidden behind scaffolding for years, the restoration work could only be seen in photos cautiously released by the Vatican and NHK. When the restored work was finally unveiled, everyone wanted to see the pictures in the new NHK art book. It was a sensation, as promised, each image was as bright and sharp as the day it was painted. NHK won accolades for its patronage, and recouped some of its expenses with the film and book. The Vatican got a free restoration, and the work was preserved for the future.

But there is some legal controversy surrounding this issue. Old artworks may have an owner, but no living author or heirs, and the rights may have expired. If the work is in the public domain, the only guardian is the owner, who has an incentive to exploit those rights for profit. In 1999, a US District Court appears to completely strip away those rights.

In the case of Bridgeman Art Library, LTD. vs Corel Corp., Bridgeman sued Corel for infringement. Corel had sold unauthorized CDROMs with Bridgeman's copyrighted images of public domain artworks.

Bridgeman lost the case, and the court set a legal precedent that a photograph of an artwork is not a new work eligible for copyright. Bridgeman had inadvertently destroyed a major market for its products and weakened its central business model. But the US legal precedent does not apply in the UK where both Bridgeman and El Reg operate, so we must pay for the privilege of publishing them.

Some organizations are skirting around this issue. One of my favorite images from the Sistine Chapel ceiling is known as the "Delphic Sibyl." The Sibyl is supposed to be a woman, but Michelangelo prefered young boys as models, so we get a charming figure with an androgynous face and manly arms jutting out from under her blouse and cape. An image of the restored Sibyl is available on Wikipedia, with this disclaimer:

This image (or other media file) is in the public domain because its copyright has expired.

This applies to the United States, Canada, the European Union and those countries with a copyright term of life of the author plus 70 years.

Faithful reproductions of two-dimensional original works cannot attract copyright in the U.S. according to the rule in Bridgeman Art Library v. Corel Corp. This photograph was taken in the U.S. or in another country where a similar rule applies.

But the disclaimer avoids mentioning UK law; a footnote links to a clarification that accessing this image in the UK could be an infringing action. The Wikipedia image left is unattributed, leaving the international legal status unclear.

The British Museums Copyright Group issued a statement denouncing the Bridgeman v. Corel decision, and advocating the preservation of existing copyright laws concerning reproduction of art objects. Museums and institutions demand control of their IP rights, so it could be difficult to find donors to support restoration and preservation projects if the Intellectual Property rights become worthless.

At this stage, a new and powerful figure enters the picture.

It can be argued that this law about artwork reproductions originated as a courtesy to museums and cultural institutions, and sustains their efforts to preserve our artistic heritage. But there are other agencies that operate solely for profit.

Bill Gates, the world's richest man, founded Corbis, the world's largest source for archival images in 1989. There is a (probably apocryphal) legend about Gates conceiving the idea for Corbis because he wanted fine art to display on the large screen TVs in his new mansion. But legends aside, clearly Gates saw that the image brokering business was ripe for exploitation by someone with deep pockets.

Corbis has recently acquired several major sole-source archives of images, such as The Bettmann Archive. Corbis offers many contemporary copyrighted photos, but it also provides copyrighted photos of old public domain works for which Corbis is the only source; this can only be considered a monopoly. Corbis has negotiated deals to purchase the exclusive rights to the entire archives of major museums across the world. The museums transfer copyrights of all their works to Corbis, and Corbis makes the images available for purchase, guaranteeing the museums a revenue stream. Corbis has yet to make a profit from these museum collections, but the museums are locked into long term contracts and they like the money.

Ultimately, it should not be surprising that a monopolist like Bill Gates discovered a clause in copyright law that allowed him to acquire a new monopoly. All monopolies ultimately derive from copyrights or patents granted by government. There is essentially no difference between a monopoly on artworks by Corbis, or a monopoly on computer operating systems by Microsoft.

In a video interview on CNN in March 2006, Gates outlined his vision of Corbis as a commercial hub for image transactions, proposing a system of Digital Rights Management for images. You can see the video here.

Whatever Gates touches, he makes into an expression of his personal business philosophy. The same provisions of copyright law apply to cultural institutions as well as robber barons, the only difference is how those laws are exploited.

Copyright laws are fine, and work for, not against, the public interest. The ability to exploit the rights to Michelangelo's original work permitted a new masterpiece to emerge. But copyright only works if we can rein in the robber barons. ®

Bootnote

This famous Holbein painting was executed in 1533, but the post-restoration photo bears a copyright notice by The National Gallery of London, dated 2002. This painting was restored in 1997, it might have been difficult to get patrons to support an expensive restoration project if the Gallery could not profit from IP licensing of the newly restored artwork. The National Gallery's IP licensing terms are available here.

Charles Eicher is an artist and multimedia producer in the American Midwest. He has a special interest in intellectual property rights in the Arts and Humanities. He writes at the Disinfotainment weblog.