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February 25, 2013

Abstract Future for Digital Art

Why shouldn’t Google and museums partner to bring 184 collections and more than 8,000 artists to your electronic tablet, cellphone or home computer? More people may have an opportunity to view these valued works as a result of the partnership, but experts say copyright and profit issues have not been resolved.

“We have a constitutional underpinning to our legal system in the country, and copyright falls squarely in that underpinning,” said Alexandra Darraby, principal at the Art Law Firm, during an _ webinar titled “The Picasso Problem: Copyright and the Google Art Project.” “When a corporate entity like Google or anyone else comes in and has some kind of not fully disclosed role about copyrights, then it is time for the public and the legal community to sit up and pay attention.”

The Google Art Project, which launched in February 2011, is the opportunity to virtually explore art collections in some of the premier art museums around the world, including the Metropolitan Museum of Art in New York and the Van Gogh Museum in Amsterdam. The artworks are photographed in high resolution, and people can create their own gallery of favorite portraits to share electronically. However, some of the Google Art Project images may be protected by copyrights, which give the creator of an original work exclusive rights to the work. These rights are often held by the artist during his or her lifetime and by an estate 70 years after the artist’s death.

Darraby said the copyright issues, such as whether the museum should secure copyright permission and who will own future iterations and reproductions, are problematic partially because the agreements signed between the museums and Google are confidential.

“It would be really important for the institutions licensing with Google to understand what’s in their collections and what those rights may be before they enter into a licensing agreement that affects those rights because they may have been restored to the original copyright owner, artist or estate,” said Darraby, who is also the author of the forthcoming book, Legal Guide to Digital Art & New Media, which will be published this year by the ABA. “The licensing agreement between the museum and the Google Art Project is not publicly available. Museums that have signed onto the project are bound by confidentiality agreements not to release it.”

There are also issues as to whether the Google Art Project, a for-profit entity, is consistent with the public trust endowed in a tax-exempt institution. Museums are given a tax benefit that entitles them to hold the art and other objects in trust for the public, Darraby said. “If you go to a museum, those works are in the bricks and mortar of the institution, but, in fact, they belong to you,” she said. “It’s a matter of law.”

Darraby also expressed concern about the “prerequisites to entry,” which include using Google’s Internet browser, Chrome, to access the works. “It is not as public as walking into your local museum; you have to use the Chrome process,” she said.

Raymond J. Dowd, partner at Dunnington Bartholow & Miller LLP, said that Chrome, when it is uninstalled, sometimes affects the functions in a user’s current applications. He also questioned Google’s intent to have consumers use its own products to view the works. “Forcing folks off one browser and on to another, it raises issues,” Dowd added.

Museums must receive an invitation from Google to participate in the project, said Carlotta Ramirez, an attorney at the Museum of Fine Arts, Houston.

Her museum received an invitation and viewed it as complementary to the institution’s mission to ensure that art is available to all. Houston’s Museum of Fine Arts features 1,055 artworks and 569 artists in the project.

“The approach for any museum would be to investigate a licensing agreement the way you would with any licensing agreement,” Ramirez said. “Make sure that you know the agreement you’re entering into and that you plan accordingly.”

LeAnn Shelton,(Member of the American Institute of Architects), general counsel and director of Business Affairs for the Rockwell Group, assured participants that the courts eventually will decide the legal issues related to the project.

The _ Forum on the Entertainment and Sports Industries and Center for Professional Development sponsored the webcast.