When Doors Close, A Market Grows: Museums, COVID-19, and Cultural Digitisation

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

As Toronto museums close their doors once again, their only option to stay “open” is to turn towards the digital. Toronto museums are not alone, although perhaps their struggles are more drawn-out; museums and art galleries in the U.K. and the U.S. have also faced physical closures due to lockdown restrictions. According to UNESCO, more than 85,000 museums worldwide (nearly 90% of museums surveyed) have closed their doors. In 2020, visitor figures for the world’s top 100 art museums dropped by 77%.

In staying “open” virtually, museums and galleries have expanded their online presence by producing virtual tours and immersive experiences for remote viewing. Many museums have made high-resolution images of their collections available online, including the Victoria and Albert Museum, whose online portal hit a record-high level of audience engagement in 2020. New York art attorney Amelia K. Brankov explains that museums can ensure compliance with copyright legislation while protecting against the risk of liability resulting from third-party actions by providing an appropriate “terms of use” section on their website.

For North American museums with works still under copyright, the 2017 publication Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums by the Association of Art Museum Directors will come in handy. However, many of the masterpieces housed by museums are in the public domain. Copyright subsists in Canada until 50 years after the creator’s death and in the U.S. and U.K. until 70 years after the creator’s death (although, per the terms of the Canada-United States-Mexico Agreement, Canada will soon bridge that 20-year gap). Yet, in many cases, museums continue to profit off of and control these works.

On the one hand, licensing deals made possible by control over artistic works offer an important source of revenue for museums struggling during, or in the wake of, mandated closures. On the other hand, some criticize museums’ practice of reappropriating works in the public domain by claiming copyright protection for their reproductions, thereby artificially extending the duration of copyright protection. Further, museums risk being deemed “hypocritical” when they promote the commercialisation of their collections while banning usage by others. 

In 1972, art critic John Berger remarked, “For the first time ever, images of art have become ephemeral, ubiquitous, insubstantial, available, valueless, free.” Taco Dibbits, director of collections at the Rijksmuseum in Amsterdam, explains that the museum allows audiences to download high-resolution photos of its collections: “If they want to have a Vermeer on their toilet paper, I’d rather have a very high-quality image … than a very bad reproduction.”

The question remains whether Vermeer-covered toilet paper marks a problem. The debate of who, if anyone, should have control over cultural artefacts in the public domain was recently reinvigorated when the Louvre museum and Uffizi Gallery threatened to sue Pornhub for turning works by painters Titian and Courbet into pornography without authorization. As Artnet News pointed out, it is worth noting that Pornhub is at the center of serious allegations of hosting and profiting off videos of rape, incest, and child abuse. Those who criticize the company, and any association with it, may have better grounds to stand on than moral outrage over pornography.        

Moral rights include the right to the integrity of the work and attribution in reasonable circumstances. Museums in France can claim perpetual moral rights of an author’s work. In Italy, the Code of the Cultural and Landscape Heritage requires museums’ permission to use images from their collections for commercial purposes. On these bases, the Louvre museum and Uffizi Gallery, based in France and Italy respectively, threatened to bring legal action against Pornhub. This is the same Louvre that launched “a flurry of brand partnerships” in 2021 with brands ranging from Casetify to Uniqlo. This is also the same Uffizi that has taken to TikTok to depict scenes such as Botticelli’s Venus running away from tourists attempting to take selfies with her. Would Botticelli approve more of his works appearing on TikToks, phone cases, and graphic tees than pornography? And the ultimate question: Who’s to say?

So, what can we expect as the COVID-19 pandemic enters its third year? The best answer I have found is Lee Cheshire’s: the only certainty is that nothing is certain. Despite this, the museum directors and head curators that Cheshire spoke to are confident in their ability to adapt to the changes that 2022 will bring. Director of the UCCA Center for Contemporary Art Philip Tinari says, “It’s a question of pricing in some uncertainty to your planning.” Another explanation for the confidence of directors and curators going into the new year is the millions of dollars of cultural intellectual property at their fingertips and the continued growth of global sales of licensed goods and services, particularly in art.