It seemed like the perfect digital heist. The Nefertiti bust, created in 1345 B.C., is the most famous work in the collection of Berlin’s Neues Museum. The museum has long prohibited visitors from taking any kinds of photographs of its biggest attraction. Nonetheless, in 2016 two trenchcoat-wearing artists managed to smuggle an entire 3D scanning rig into the room with the bust and produce a perfect digital replica, which they then shared with the world.
At least, that was their story. Shortly after their big reveal, a number of experts began to raise questions. After examining the digital file, they concluded that the quality of the scan was simply too high to have been produced by the camera-under-a-trenchcoat operation described by the artists. In fact, they concluded, the scan could only have been produced by someone with prolonged access to the Nefertiti bust itself. In other words, this wasn’t a heist. This was a leak.
One of the first experts to begin to question the story of the Nefertiti scan was the artist Cosmo Wenman. Once Wenman realized that the scan must have come from the museum itself, he set about getting his own copy and making it public. He initiated the German equivalent of a FOIA request. (The Neues Museum is state-owned.) His request kicked off a three-year legal odyssey.
The museum never quite clarified its relation to the scans. But earlier this week, Wenman released the files he received from the museum online for anyone to download. The 3D digital version is a perfect replica of the original 3,000-year-old bust, with one exception. The Neues Museum etched a copyright license into the bottom of the bust itself, claiming the authority to restrict how people might use the file. The museum was trying to pretend that it owned a copyright in the scan of a 3,000-year-old sculpture created 3,000 miles away.
The Neues Museum chose to use a Creative Commons Attribution, NonCommercial, Share-Alike license. If the museum actually owned a copyright here, the license would give you permission to use the file under three conditions: that you gave the museum attribution, did not use it for commercial purposes, and allowed other people to make use of your version. Failing to comply with those requirements would mean that you would be infringing on the museum’s copyright.
But those rules only matter if the institution imposing them actually has an enforceable copyright. If the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan, then you don’t need permission from a “rights holder” to use it. Because that rights holder does not exist. It would be like me standing in front of the Washington Monument and charging tourists a license fee to take its picture.
As I wrote at the time of the original story, there is no reason to think that an accurate scan of a physical object in the public domain is protected by copyright in the United States. (More about this idea in this white paper.) Without an underlying copyright in the scan, the Neues Museum has no legal ability to impose restrictions on how people use it through a copyright license.
While the copyright status of 3D scans of public domain works is currently more complex in the EU, Article 14 of the recently passed Copyright Directive is explicitly designed to clarify that digital versions of public domain works cannot be protected by copyright. Once implemented, that rule would mean that the Neues Museum does not have the ability to use a copyright license to prevent commercial uses of the scan in the EU. Now, licenses can signal intent to users even if they are not enforceable. In this case, it appears that the Neues Museum is attempting to signal that it would prefer people not use the scan for commercial purposes. While that is a fine preference to express in theory, I worry about it in this specific context. There are plenty of other ways for the Neues Museum to express this preference. When a large, well-lawyered institution carves legally meaningless lawyer language into the bottom of the scan of a 3,000-year-old bust to suggest that some uses are illegitimate, it is getting dangerously close to committing copy fraud—that is, falsely claiming that you have a copyright control over a work that is in fact in the public domain. The Neues Museum could easily write a blog post making its preferences clear without pretending to have a legal right to enforce those preferences. In light of that, this feels less like an intent to signal preferences than an attempt to scare away legitimate uses with legal language.
The scary language has real-world consequences. These 3D scans could be used by people who want to 3D-print a replica for a classroom, integrate the 3D model into an art piece, or allow people to hold the piece in a virtual reality world. While some of these users may have lawyers to help them understand what the museum’s claims really mean, the majority will see the legal language as a giant “keep out” sign and simply move on to something else.
The most important part is that adding these restrictions runs counter to the entire mission of museums. Museums do not hold our shared cultural heritage so that they can become gatekeepers. They hold our shared cultural heritage as stewards in order to make sure we have access to our collective history. Etching scary legal words in the bottom of a work in your collection in the hopes of scaring people away from engaging with it is the opposite of that.