No Photographs, Please, We Are French

On Wednesday March 8, a French art history student was escorted out of the Louvre Museum in Paris. His crime? He was taking pictures of the Valentin de Boulogne exhibition, a painter who has been dead for almost 400 years.

It is thus safe to assert that the Louvre is not protecting the interests of the painter or his heirs. While moral right is indeed perpetual in France, the patrimonial rights of Valentin have long been exhausted, if there ever was such rights for him in the 17^th Century… As noted by fellow copyright blogger Calimaq, the other exhibition currently shown at the Louvre, Vermeer, also has a no-photo policy… The works featured both of these exhibitions are in the public domain. The Louvre Museum is a public museum. So… what gives?

The New York Metropolitan Museum of Art recently made the images of its artworks which are in the public domain freely available through a new open access policy, without restrictions. The images which are in this category can be recognized on the Met web site by a Creative Commons Zero (CC0) icon directly below the image.

Watercolour of the Louvre by Arthur B. Davies, Met collection, Public Domain.

It is the Met which first showed the Valentin de Boulogne exhibition. As this follower of Caravaggio was French, it is not surprising that the exhibition is now shown at the Louvre. But while visitors of the exhibition at the Met were able to freely take pictures of the paintings, the Louvre seems to strictly enforce a no photograph policy. Valentin de Boulogne died in the 17^th Century, and his works are all, of course, in the public domain. So, why does the Louvre forbid the visitors of this exhibition to take pictures?

Forbidding to take pictures may be done in order for the safety of the works exhibited. Indeed, another work of art was recently slaughtered at the selfie altar, this time in D.C., but safety is not the concern of the Louvre for an exhibition featuring painting, not sculptures.

Some of the lenders may have lent their work under the condition that no picture is taken of it. But French blogger Didier Rykner, who created the Tribune de l’Art website, wrote that he had visited the Valentin de Boulogne exhibition in New York and that there were no such restrictions on visitors. To thicken the plot even further, French art historian Rémi Mathis noted on Twitter that the Louvre had authorized pictures to be taken at the VIP opening of the Valentin show…

Valentin de Boulogne, Lute Player, The Met, Public Domain

Pierre Noual, who holds a doctorate in law and is also an art historian, wrote an interesting guide on the rights of the visitors of a museum who would wish to take pictures of the works. Dr. Noual notes that owning a work protected by copyright does not mean that one owns its copyright. The owner merely owns the material support of the work. This is particularly true under French law, as its droit d’auteur places great importance on the creative process of a work.

Dr. Noual cites the May 7, 2004 decision of the French Cour de cassation, in its plenary session, which held that the “owner of a thing does not have an exclusive right over its image. He may, however, oppose the use of this image by a third party when it causes him an abnormal disorder”. Dr. Noual argues that “it is difficult to admit that the photograph of a work may disturb the tranquility or the privacy of its owner, since he has consented to the loan or the deposit of his work in an institution so that it can be exhibited.”

If it is not the rights of the author which are protected by this ‘no-pictures’ policy, nor the rights of the lenders, could it be the rights of the museum? Art exhibitions are no longer sedate affairs but are becoming carefully orchestrated matters, organized to generate public interest, sales of tickets and derived products. Nothing wrong with that. But is forbidding taking pictures of works in the public domain a good marketing strategy?

Calimaq wrote last December about a December 23 decision of the French highest administrative court, the Conseil d’État, which confirmed that a public entity can forbid a private entity to take pictures of works inside a public museum. In this case, a private company has been asking since 2006 permission to take photographs of works exhibited in the public Beaux-Arts museum of Tours.

The Conseil d’État had found, in a 2012 holding in the same case, that:

“taking of photographs of works belonging to the collections of a museum for the purpose of marketing the photographic reproductions thus obtained should be regarded as a private use of goods in the public domain, requiring that those who intend to do so must obtain an authorization… [S]uch authorization may be granted if… this activity remains compatible with the assignment of the works to the cultural public service and their preservation… [H]owever, the public authority [in charge of granting this authorization] may not allow a private use of these public domain goods without… [violating] the principle of freedom of trade and industry, to engage in economic activity in the public domain.”

Last December, the Conseil d’État confirmed this case law. It rejected the argument made by the professional photographer that the works he wished to photograph were in the public domain, without explaining how it came to this conclusion.

The Conseil d’État merely noted that it “appear[ed]…that the grounds advanced by the [Tours] municipality to justify [its refusal to grant permission to photograph the works of art] was based on its intention to retain control over the conditions In which photographic reproductions of the works exhibited in the museum are established and disseminated, and that excessive dissemination of such reproductions could damage the attractiveness of the museum and impair its attendance by the public” and found this reason to be legally founded. It is clear that it is the financial interest of the public entity which are being preserved. In other words, “Exit Through the Gift Shop”…

However, this decision cannot be used to justify barring the general public from taking pictures in museums, as such activity cannot be described as “excessive dissemination” which could “damage the attractiveness of the museum and impair its attendance by the public.” If anything, taking pictures of works shown at the Louvre, and posting them on social media can only enhance the attractiveness of the exhibition and improve its attendance.

Other museums understand this well as they encourage #museumselfies and participate in Museum Selfie Day (see here and here). If you wish to participate in this event next year, do not head to the Louvre.