People are not born with copyrights. But the Constitution of the United States of America grants Congress the authority to bestow persons with copyrights in what is known as the “Copyright Clause” (Article 1, Section 8, Clause 8):

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

As such, over the years, Congress has enacted varying protections that secure “for limited Times… the exclusive Right” to works. Originally, it seemed that it would be the government’s intent to only protect literary creations and various scientific discoveries that could be patented. However, in time, the scope of copyright expanded along with people’s views of what constituted art. For example, the United States Supreme Court ruled in Burrow-Giles Lithographic Co. v. Sarony (1884) that photographs are “original work[s] of art,” that are “of a class of inventions for which the constitution intended that congress should secure… the exclusive right to use, publish, and sell….” The Court went further in Bleistein v. Donaldson Lithographing Co. (1903), articulating a distinction for copyright based, not on form, but on “singularity” and uniqueness of a thing.

Today the scope of copyright has never been broader and, potentially, has never been as dangerous for museum professionals.

Modern United States copyright law protects literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. Many such works may be found in any given museum. Copyright law further provides owners of copyright the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display their works. These rights may be transferred or conveyed all together or individually. For the purposes of museums, we are most interested in the exclusive rights (1) to reproduce a work and (2) to prepare derivative works.

Reference: DuBoff, L., S. Burr, & M. Murray. Art Law: Cases and Materials. Buffalo: William S. Hein & Co., Inc., 2004, p. 170.

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