By: Lauren Liu

Since the COVID pandemic hit, the world has been facing continuous health and economic issues. The art world, in particular, has been facing hardships that require art institutions to adjust their mode of operations. Since the year 2020, the world’s effort to contain the spread of COVID forced art galleries and museums around the world to close their doors and look for new forms of operation and exhibition. Such adaptations include increasing online marketing platforms, organizing virtual panels, and even creating online art exhibitions. In particular, these virtual exhibitions use high-resolution images of artworks, and provide them with contextual introductions of the artists’ background and inspiration. Some galleries include artworks that are available for sale, and thus further providing financial benefits for the galleries and their artists. The most fascinating part of these virtual platforms is the galleries’ implementation of virtual reality and augmented reality tools to produce virtual tours and remote immersive experiences. In other words, they are virtual exhibitions that mimic the audience’s experience when they are physically in an art gallery.

Virtual reality, also known as augmented reality (AR), usually displays an original or scanned work of art in a digital setting, thus creating a “total immersion” experience for the audience. As amazing and creative as it is for the audience, legal issues can arise for the gallery. For example, AR can invite “guerilla hacking” of a virtual exhibit. Hackers can copy and post unsanctioned works on the digital digital platform, and thus infringe upon the copyright of the original artists and take away the gallery’s potential revenue. Furthermore, the gallery also faces potential lawsuits from their artists alleging that the unauthorized use of their works was approved by the gallery.

As museums and galleries started implementing these virtual methods, they also had to start considering potential copyright issues. When museums use virtual reality or displaying art works online, they must keep in mind the intellectual property rights in the images and the text. Furthermore, they need to consider the rights of the artist, especially for a primary-market sale offer. For most artists, museums generally can clear the rights to use high-resolution images through the artist or her licensing agency. As for the photographer, if he or she is not employed by the artist or the museum, the museum should consider obtaining a broad license or require the photographer to execute a work-made-for-hire agreement with the customary in-the-alternative assignment language. Museums should also obtain the necessary rights from the author of the essays featured in the viewing room.

Museums and galleries may have available to them, the Fair Use defense against copyright infringement claims. For example, for secondary-market sales, such as resales of artworks, museums and galleries may not have a relationship with the artist or the artist’s estate. In such a case, the Fair Use Doctrine may allow the use of small, low-resolution images. The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Whether or not the doctrine allows the display of large-scale, high resolution images without permission is less clear. There is also no specific definition of large versus small scale, and high versus low resolution. Courts usually analyze each situation according to a totality of circumstances.

Lastly, galleries should be aware of whether or not the displayed artwork incorporates third-party content. If so, the owner of that content can potentially have a claim against the display. Possible solutions to mitigate this risk include obtaining an opinion from attorneys regarding potential Fair Use defense, working with the artist in advance of an exhibition to reach an agreement about the use,  and potentially having liability or omissions insurance in place. 

The online presence of museums and art galleries has grown due to COVID. Even now, after all venues have nearly reopened to the public, many virtual options still remain available. Although there are many uncertainties in potential copyright cases, museums and galleries that are using or considering virtual arts should conduct more thorough legal research, seek legal advice from counsel, and implement prevention mechanisms to mitigate risks.