There is a lot to discuss following The New York Times’ Swiping a Priceless Antiquity…with a Scanner and a 3-D Printer about the Bust of Nefertiti in the Neues Museum that was surreptitiously 3D scanned by two German artists: Is their story of how they obtained the scan true? What does it mean for the ongoing dispute about the appropriateness of such an artifact residing in a German museum? Should more museums be releasing high quality 3D scans of their collection? Where can I get a copy of the file?
Some people also eventually start to wonder about copyright. Are the artists infringing on any rights by creating the scan? Do the artists have any new copyright in their scan? If the museum wanted to control scanning of objects, can they use copyright? If you are one of those people, this post is an attempt to give you some answers.
Is Scanning the Bust Copyright Infringement?
No. The bust itself is more than 3,000 years old. There was no concept of copyright when it was created (as far as I can tell—legal scholars of ancient Egypt, prove me wrong!), and we are well beyond the current life plus 70 years term of copyright protection today. The bust is firmly in the public domain and, at least from a copyright perspective, available for anyone to copy, remix, and build upon without permission.
Do the Artists Who Created the Scan Have Rights in Their Scan?
Most likely not. In the United States the creator of a digital scan does not get a copyright on the scan file independent of the object being scanned. The situation is a bit less clear in the EU, but there are strong arguments [outlined here] to come to the same conclusion.
Note that this is different than how photographs are treated. Why the difference? The short version is that copyright is designed to reward creativity. These types of digital scans may take a lot of work to be accurate, but they are designed to avoid introducing creative variation into the file. The goal of the scan is to copy the object as perfectly as possible – integrating creative interpretation would be counter to that purpose. (If this explanation feels incomplete to you, keep watching this space. We’re working on a whitepaper that takes a bit of a deeper dive into the issue.)
Can Museums Stop This Sort of Scanning?
Not with copyright. However, there are potentially other ways. Museums control access to the artifacts and can condition that access on all sorts of rules. Just as they can require you to pay a fee or leave your bags at the door in order to see an artifact, they can say that in return for access to the artifact you agree to not take a scan.
However, that sort of restriction has at least two shortcomings. First, enforcement is restricted to people who agree to the terms. That means that they can punish the person who physically accessed the object for violating the terms. But a person who just downloaded the scan never agreed to those terms – and therefore shouldn’t be held responsible for violating them.
Second, as this incident vividly illustrates, trying to prevent scanning may be a fool’s errand. While museums may be able to impose these sorts of rules, it may be better in the long run to create their own high-quality scans and release them instead of waiting for bootleg versions to leak out.