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Petersburg vs Paris: how museums replenish and how diminish the public domain

Two weeks ago, we learned how the Paris museums made 60,000 historical photos in the public domain . But what about in Russia? How are Russian museums insured against such a loss? I'll tell you now.

Thomas Gainsborough Self portrait. 1759 year.
Thomas Gainsborough Self portrait. 1759 year.

This story began a long time ago. Even in the XVIII century, the Englishman Thomas Gainsborough painted the picture “Lady in Blue”, depicting the beautiful Duchess de Beaufort on it. In 1912, the rich man and collector Alexei Khitrovo bequeathed this picture to the State Hermitage Museum, and in 1916 she got into the museum. Like all museum objects, it is now state property and is included in the Museum Fund of the Russian Federation.

We’ll skip a hundred years and move on today. In St. Petersburg lives Iya Yots - a fashion designer and mistress of a fashion company. She instructed the artist to draw herself in the style of a Gainsborough painting to make an emblem for fashion collections. The artist accurately and gently entered the portrait of the customer in a suit from a picture of Gainsborough.

Thomas Gainsborough Lady in blue. Around 1780
Thomas Gainsborough Lady in blue. Around 1780 It was from this picture that a pencil drawing was made with a portrait of the customer.

Why not, they reasoned? After all, Gainsborough died in 1788, and his copyright terminated long ago? So, if you draw a dress from a picture, it will not be piracy, after all, two hundred years have passed? And so the picture appeared on the website of the fashion designer, on the door in her store and on the scenery for a fashion show.

And then the museum sounded the alarm


In 2010, the Hermitage learned that Iya Yots made an emblem from a museum painting, and immediately filed a lawsuit. According to the museum, for commercial use it is necessary to obtain permission from the museum, where the object is copied. And without permission you can’t do anything.

Therefore, the Hermitage asked "to ban IE Yots Ie Viktorovna ... use reproduction of a painting by Thomas Gainsborough in its business activities without the appropriate permission of the State Hermitage Museum." In particular, the museum demanded to remove the drawing from the photo gallery on its website. In its requirements, the museum relied on article 36 of the Museum Fund Act:

- The production of graphic, printed, souvenir and other replicated products and consumer goods using images of museum objects and museum collections, museum buildings, objects located in the territories of museums, as well as using their names and symbols, is carried out with the permission of the museum directorates.

To prove his case, the Hermitage invited an expert from the Russian Academy of Arts. Expert Veronika-Irina Troyanovna Bogdan indicated that the drawing has a great resemblance to the picture. In her opinion, the picture reproduces the picture "Lady in Blue" with slight differences. He does not have an “independent artistic concept and plot”, for gestures, posture and costume, taken from a Gainsborough painting, are repeated.

Judge Supports Hermitage Claim


The amazed defendant explained that the drawing is not reproduction, but stylization, processing of the picture. And he was made not in oil, not in watercolor, but in pencil. But the judge of the Arbitration Court of the Stavropol Territory did not believe the defendant. But she believed that the Law on the Museum Fund and the Fundamentals of Legislation on Culture introduce special rights to the exhibits of the Museum Fund.

Therefore, the judge decided that all use of the pattern should be prohibited. You will have to delete all photos from the site where the drawing is visible, and you can no longer use the reproduction of Gainsborough’s painting “The Lady in Blue” without permission from the Hermitage. The appeal court repeated the same.

Very interestingly commented on this problem, the President of the Pushkin Museum of Fine Arts named after Pushkin Irina Aleksandrovna Antonova:

- If someone takes a picture and makes a book, this is also material damage to the museum. Do we really want random people to work in museums who often don’t even know how to properly sign a picture?

However, the defendant did not give up and appealed to the Intellectual Property Rights Court. And then the beautiful began.

The federal court verdict is still the same


Now we already understand the problem. On the one hand, there is the Civil Code and copyright protection, which long ago ended for this picture of the Englishman Gainsborough. On the other hand, there is the Law on the Museum Fund and the protection of museum rights, which will never end.

The Intellectual Property Rights Court reiterated all the findings of the previous courts. Gainsborough's painting became an exhibit of the Hermitage. It is reproduced as an emblem for the designer clothing store "Iya Yots." Commercial reproduction of the exhibit is allowed only with the consent of the museum.

A contradiction is obtained: in theory, the work has already passed into the public domain, but in practice its use is very severely limited. And then SIP gave an accurate explanation.

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The Intellectual Property Rights Court emphasized that if a work has passed into the public domain and its copy is kept in a museum, it means that this is not at all a public domain. So, the real copyright has ended, but the “museum copyright” is working to its full potential.

This prohibition "does not contradict the doctrine" of the public domain, but only restricts it from working.

Be aware of this trap. Fear Russian museums.

Notes


Written on the basis of court case A63-18468 / 2012. A similar issue was resolved in cases A11-1595 / 2008, A56-52447 / 2012, A40-28447 / 2013, A40-64830 / 2013, A56-28535 / 2015.

Text: CC-BY-SA 3.0.

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