Volume 5, Number 5
Nov 1981

For Activist Conservators: Copyright

A cross-disciplinary paper was presented in the documentation session at the AIC meeting in May: Reid A. Mandel. "Copyrighting Art Restorations." Bulletin of the Copyright Society of U.S.A., April 1981: 273-304. (The Society is at 40 Washington Square South, New York, NY 10012, and that issue costs $6.00.)

The 1976 Copyright Act makes it possible, the author argues, for private conservators or museums to copyright any work of art which has been significantly altered during restoration, as by reconstruction of lost parts of a prehistoric vase or a damaged painting, Whether or not the conservator also owns the object, copyright gives them the right to authorize display, reproduction and the preparation of derivative works. It does not give them any control over storage conditions, however. The author speaks:

"Their inability to protect works after they have left their hands is a source of tremendous frustration to conservators. . . . Copyright offers a means of control- ling the treatment a work receives, . . . The rights which are available under American law would be warmly embraced by conservators, specifically the rights to authorize display, reproduction, and the preparation of derivative works [i.e., future restorations].

"With this power [the right to authorize the public display of a fine art work], conservators could prevent mistreatment of a work by refusing to authorize its public display under harmful conditions, such as exposure to klieg lights during television broadcasts, Similarly, under the right to authorize reproductions of a work, conservators could insure the safety of the methods used. Conservators could augment their powers under these rights by contract with their clients, too. (Footnote: The reproduction is set forth in section 106(1) of the 1976 Copyright Act. The possibility of modifying these rights by contract is discussed in House Report, at 79.)

"Since a restoration which effects significant alterations is a derivative work, any restoration is a derivative of prior restorations if it contains elements added during the latter. The right to authorize derivative works empowers a conservator to require that subsequent restorations of a work he has treated be performed by certified conservators. As argued earlier, restoration by a trained and certified conservator should be deemed fair use, but restoration by unqualified individuals would be an infringement and this the conservator could prevent. She may also prevent the wrongful attribution of her work, which permits her to suppress schemes for forgery and palming-off involving works she has restored."

Whether bookbindings and book restorations are considered copyrightable is not clear from the article. They would presumeably be covered by the section on utilitarian objects, p. 291-2, which seems to say that a useful object is not copyrightable, even if it is also artistic or graphic, unless the artistic or graphic features "can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Does this mean that a rebacked book, or a restored book with a new leather cover, could be copyrighted only if the graphic and artistic aspects of the cover--the leather with its tooling or design, headbands, title, just proportions, and so on--were separable from the handy, protective boards and hinges? Does it mean that a leaf or an entire textblock, made whole by leafcasting and the other arts of the paper conservator, would not be copyrightable because the result was useful as well as beautiful? Or would the existing law on copyright of books as graphic objects cover this case', and extend the sane protection to the cover as it does to the text itself? Or would the law on copyright of designs for publishers' books and book jackets apply?

The footnotes are interesting because they quote conservation literature as much as they do the law, and even quote from the AIC Code of Ethics.

The new law does not require that a copy of each art work be deposited to secure the copyright, but it does require deposit of two copies of each published book. Here again the question arises: Where does one draw the line between the rare book as unique cultural or historic artifact, and the replaceable book that is one of many identical copies produced by a publisher?