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. Last Updated: 07/27/2016

Museums Caught in Internet Art Dilemma

Georgia O'Keeffe's red hills, bleached bones and poppies populate countless sites on the World Wide Web. But nary a landscape, skull or flower can be found on the cyberspot belonging to the Georgia O'Keeffe Museum in Santa Fe, New Mexico. This simple irony illustrates the quandary in which museums find themselves as they assess the opportunities and threats presented by the Internet.

O'Keeffe, whose work is ubiquitous on the Web sites of scholars, poster sellers and art lovers, is not alone. The works of legendary figures of 20th-century art, from Kandinsky to Chagall to Klee, pepper the Web.

With everyone else feeling free to publish these images in cyberspace, what holds back art museums?

First, uncertainty about the legality of posting images which often do not belong to them -- even though the artworks themselves do. Second, fear that the Web's raw power as a copying machine will hurt the quality of the art and the commercial rights of the artists and their heirs, who usually own the images.

The rise of the Internet has forced museum directors to grapple with an old problem in a new and confusing universe. In cyberspace, it is unclear how best to balance their twin missions of making art available to the public and protecting the value and integrity of the art.

"We regard the Internet as an opportunity to educate a new generation of potential museum goers about what awaits them," said Harold Holzer, vice president for communications at the Metropolitan Museum of Art. "It's another tool for reaching a wider audience."

Some legal experts do not take such a sanguine view. When museums carelessly publish art on the Net, "they may be committing what I like to call 'cybercide,'" said William Borchard, a partner at the law firm of Cowan, Liebowitz & Latman and a member of the art law committee of the Bar Association of the City of New York.

"They may be either killing some of their own ability to make money or subjecting themselves to liability" -- such as that arising from infringement of the original artist's copyright.

But in an era that has seen fine-art images migrate to posters, and from posters to T-shirts, the concern may seem misplaced.

In the case of 19th-century artists and their predecessors, back to the cave painters, no protection is needed: Their art is already in the public domain. But in the case of someone like the modern master Henri Matisse, things are less clear.

Generally, works published more than 75 years ago are in the public domain in the United States and can be freely reproduced, according to Jane Ginsburg, a professor at the Columbia University School of Law. Works published since then may or may not retain copyright protection, she said, depending on factors including whether the work is foreign or domestic; when and where the work was published, and the date of the artist's death.

To add to the complexity, an image that can be legally posted in the United States may remain under copyright protection in another country -- an important detail given the Internet's global reach.

In the case of Matisse, other factors come into play. Under current laws and treaties, the copyrights to some of Matisse's work, owned by his heirs, will not expire until at least 50 years after his death. (Matisse died in 1954.) Other Matisse works may already be in the public domain.

So until the potential risks and rewards become clearer to museums, some are choosing to wait.

The Whitney Museum of American Art's permanent collection Web page is now almost completely devoid of images, partly because "we are taking the time to do image clearance," according to the text on the museum's Web site.

At the Museum of Modern Art, Mikki Carpenter, the director of the department of photographic services and permissions, said, "We check with our legal counsel before we post anything."

Similarly, at the J. Paul Getty Museum in Los Angeles, whose collection includes few paintings created after 1900, any questions about copyrights for digital images are directed to Christine Steiner, the secretary and general counsel.

Copyrights to most of Georgia O'Keeffe's work are held by the Georgia O'Keeffe Foundation, which has refused to allow Internet reproduction of the images it controls. "I think we're like most institutions," said Judy Lopez, an assistant director at the foundation. "We want a clear picture before we start working with it."

But other museums have moved ahead to publish art on the Web. Howard Besser, an adjunct associate professor at the University of California at Berkeley and an expert on digital art, said that many museum sites were assembled by "some young, gung-ho volunteer" unfamiliar with intellectual-property issues.

Even for those who are aware of the issues, the distinctions making some images eligible for publication are unclear.

For instance, the Georgia O'Keeffe Foundation says it owns the copyright to O'Keeffe's "Cebolla Church," painted in 1945. Its executives say it has never given anyone permission to reproduce an image of the oil painting on the Internet. Yet a reproduction is posted on the Web site of the North Carolina Museum of Art, which owns the painting.

According to Joseph Covington, director of education of the North Carolina museum, the site was constructed with the understanding that the museum did not need permission for images of works created before 1978, when revised copyright laws became effective.

However, some museum law experts maintain that an O'Keeffe work created less than 75 years ago retains copyright protection.

The Fred Jones Jr. Museum of Art in Norman, Oklahoma, published a low-resolution image of O'Keeffe's "Cos Cob," a 1926 work, on its Web site without first obtaining permission from the Georgia O'Keeffe Foundation. Gail Kana Anderson, assistant director and curator of collections, said this was a "fair use" of the image.

Widespread copyright infringement on the Internet will not last forever, predicted Steve Davis, president of Corbis Corp., a company founded by Microsoft's founder, Bill Gates, whose digital archive of images was gathered in part through nonexclusive licenses with museums. "Once there is more revenue coming from publishing on the Web, there is going to be a higher level of scrutiny from intellectual property holders," he said.