Nefertiti - the case of the missing claim?
The recent case of the daring duo who scanned the bust of Nefertiti whilst on display at the Berlin Neues Museum and then made available for free download a 3D copy that can be printed by anyone with a 3D printer, has left lawyers wondering whether any laws have been broken and museums wondering how to best stop their own precious works from being “plundered” in the same way.
The obvious first stop is copyright. Most jurisdictions around the world recognise copyright in sculptures as artistic works and there is no doubt that something as beautiful an object as the bust of Nefertiti would be considered worthy of copyright protection.
So far so good, so let’s look at who the copyright belongs to. The bust was reputedly created by an Egyptian artist called Thutmose. It would be his copyright, or given that he is certainly now dead, his successors (under his will if he made one or by rules of intestacy – assuming the ancient Egyptians had such a concept). If he had sold the bust it is likely that he would not have sold copyright unless that was specifically part of the deal.
However all that is of nothing compared to a much bigger problem here – which is that Thutmose has been dead for over 3,300 years and the duration of copyright for artistic works in the UK and Germany is the life of the creator plus 70 years. The work is therefore “out of copyright” and said to be in the “public domain”.
The daring duo, who made the scan in protest at the Museum’s “possession monopoly” of the bust and other cultural artefacts, almost certainly broke the Neues Museum rules (some museums take a more relaxed view) but even if the Neues Museum could get hold of them, the claim would be difficult and would be a financial remedy – far short of the remedies in copyright which allow copyright holders to demand the destruction of offending copies.
Furthermore, while both UK and German copyright law protects the making of 2D and 3D copies of protected works, both laws include an exception which allows a person to make a drawing, take a photograph, or record a film of a sculpture that is permanently on display in a public place or in premises open to the public and to issue copies of such works to the public without the consent of the sculptor. In Germany, this is called the “freedom of panorama”. If Nefertiti was still in copyright, would a 3D scan of Nefertiti fall within this exception? There have not been any cases on this point and Neues Museum could argue that they are not "open to the public" because they charge for admission.
As noted above, under UK and German copyright law, copyright protection extends to every original artistic work (irrespective of merit). Is it possible that the 2D graphic representation and/or the 3D “print out” are themselves artistic works having their own copyright protection? The answer will depend on whether the works are “original” or merely “slavish copies”. We know that a photograph of Nefertiti almost certainly would have its own copyright protection so why not a scanned 2D graphic representation? We also know that many museums will have made reproductions of famous works for sale in their gift shops.
So could it be said that the offending copy is not of the original bust of Nefertiti, but of the reproductions sold in the museum shop as “original” works by the museums craftsmen, which are still in copyright? Perhaps a claim could be brought by the Prussian Cultural Heritage Foundation, which produced a limited edition of 100 painted 3D copies of the bust for 8,900 Euros each.
In our opinion the Neues Museum would do well to consider these areas and museums across the world might have to start looking at their gift shops in a new light.
If you have any copyright issues you would like to discuss, please speak to Paul Hardman ([email protected]) or Ed Boal ([email protected]).
Image credit: bittidjz via Flickr licensed under Creative Commons Attribution-ShareAlike 2.0 Generic
The contents of this post are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this post.