Frances Liddell, Institute for Cultural Practices
The last few days has seen a Twitter debate on the use of museum-based public domain digital images by a company called ‘Global Art Museum’ who used these images to create non-fungible tokens (NFTs), a type of token that can be used to create ownership over digital images. While it turned out to be a ‘social experiment’, Frances Liddell reflects on the use of these images by this company and considers the questions this experiment raises.
In the last few weeks, NFTs (Non-Fungible Tokens) have made headline news, which has been an exciting prospect for me as I’ve been researching the application of NFTs in the museum context as part of my collaborative PhD with the National Museums Liverpool. However, with this interest also comes potential for malicious actors to exploit the current popularity of using the technology.
Specifically, in the last few days, four art museums appeared on OpenSea without their permission through a company called Global Art Museum (GAM). OpenSea is token exchange built on top of the Ethereum blockchain where artists can sell their art through the verified means of blockchain. However, the emergence of these four museums in this space has raised questions and concerns over the use of NFTs and the potential exploitative nature of the technology.
Blockchain and NFTs
But what is a blockchain and what is an NFT? In brief, a blockchain is a type of distributed ledger technology; think of it like a distributed database where all the transactions and exchanges that happen within the network are stored permanently and immutably into this database. Therefore, a blockchain records the history of ownership over any token exchanged within its network. NFTs, also described as non-fungible tokens or cryptocollectibles, are a type of token we use in a blockchain network which we can use to store digital artworks. In doing so, we can use blockchain technology as a store of provenance, hence a proof of ownership and authenticity.
In terms of the arts, this enables artists to buy and sell their digital artwork with a proof of authenticity and ownership because the technology creates a form of identification in digital objects. Therefore, NFTs can be used to commoditise digital artworks when before this was difficult to do due to the ubiquitous nature of the digital object.
‘Disrupting the Art Museum now!’
The situation with the four art museums came to my attention with the following tweet from Dr Tina Rivers Ryan:
Global Art Museum (GAM) states that it ‘transforms historic art into blockchain-secured NFTs (Non-Fungible Tokens). Disrupting the Art Museum industry now!’. This disruption has involved taking public domain digital artworks from museums such as the Rijksmuseum (Amsterdam, The Netherlands), the Birmingham Collections (Birmingham, UK), The Cleveland Museum of Art (Ohio, US), and the Institute of Art Chicago, (Chicago, US) and ‘transforming’ them into NFTs that are available to buy via the OpenSea market platform. From what I understand on Twitter, GAM had not sought permission from these cultural institutions to do this, although they stated in one tweet that ‘We are currently in talks with the museums.’
However, within the same thread on Twitter, the Rijksmuseum has responded with the following:
While the project came out as being a social experiment, it highlights a number issues relating to the digital reproductions of public domain works and the potential pitfalls of blockchain.
‘The Garbage in, Garbage Out’ Problem
Firstly, this highlights one of the core concerns about blockchain and its authenticating abilities, which is often described as the ‘garbage in, garbage out’ problem (Ito and O’Dair, 2019). This refers to the ability for any actor to upload and create an NFT of anything even though they might not have the ownership rights to do so. Due to the nature of the technology, once a token has been created it is extremely difficult to get rid of it because blockchain is a permanent store of information, hence, when information is added it cannot be taken away. Therefore, even if these NFTs are taken down from OpenSea they will always exist in the history of the Ethereum blockchain.
Moreover, blockchain is a decentralised technology, therefore there is no central authority who can simply take down these NFTs. Granted, this took place on OpenSea, which is a third-party digital marketplace that lets artists interact with the Ethereum blockchain, and so they may hold some responsibility in taking down these images. Indeed, in its value statement OpenSea states that ‘we strive to build symbiotic relationships with our partners that mitigate traditional risks of building on third party platforms’ (OpenSea, 2021). But what are these mitigating risks? According to the Twitter thread, the NFTs made by GAM had been reported to OpenSea, however, a simple search for ‘The Birmingham Collection’ and ‘The Amsterdam Collection’ on the platform still brings up all of the questionable NFTs. Therefore, can we trust these digital spaces to do their job to regulate when there are no laws or central body to uphold them to this duty?
2. Open Access
The Rijksmuseum runs an open data policy on its digital collections, and this means the museum provides the digital images and metadata of its collection without restrictions for reuse. Specifically, you can:
Use digital reproductions of public domain objects made available by the Rijksmuseum without permission being required. For commercial purposes too.
The Rijksmuseum has promoted this aspect since they began their open access policy in the early 2010s, and this has even included the development of the Rijksstudio, where they actively promote users to make their own creations using images from their collections. (Gorgels, 2013; Rijksmuseum, 2021a).
Therefore, anyone is free to download these public domain images and use them in any way they want, and even Taco Dibbits, the director of the collections at the Rijksmuseum at the time of the development of the Rijksstudio, is quoted to have said; ‘If they want to have a Vermeer on their toilet paper, I’d rather have a very high-quality image of Vermeer on toilet paper than a very bad reproduction,” (Siegal, 2013). In other words, the museum is happy for users to use their images in any which way they would like, as long as it is their image that is used rather than a copy found elsewhere online.
The same applies with the Birmingham Museum, the Cleveland Museum of Art, and the Art Institute of Chicago. Users can access these digital collections of public domain works and are free to download the files and use them under a Creative Commons Zero Licence. In other words, users can ‘copy, modify, distribute, and perform the work, even for commercial purposes, all without asking permission’ (Cleveland Museum of Art, 2018; Art Institute of Chicago, 2021; Birmingham Museums, 2021; Creative Commons, 2021).
In this respect, the policies of these museums allows for anyone to copy and distribute their images of public domain works, and GAM argued that this means that images are free to be made into NFTs, as they responded in a tweet made to the initial thread: ‘The rights are open to anyone to use the paintings for educational or commercial work.’
3. A Question of Permission
The open access policies of these museums indicate that there is no need for GAM to seek permission or to make these museums aware of their activities because the works in question are public domain, hence they are free to use for commercial purposes without asking permission. Indeed, these museums would not have the resources or the capacity to be part of every single project that derives from the use of their open access images. However, with this case and the application of an experimental technology was it morally right for GAM to do this without seeking permission?
Ultimately, the debate on Twitter about this example was embedded in the assumption that museums have a sense of control over their collections even when those works are in the public domain. It reminds me of discussions about open access/data policies in GLAM and the law case of Bridgeman Art Library versus the Corel Corporation. In this case, the library sued Coral for copyright infringement because the company was distributing digital reproductions of public domain works on a CD which were sourced from the library’s collection (Cameron, 2006; Fouseki and Vacharopoulou, 2013). The library argued that they had a claim of copyright over their digital reproductions of these works and therefore Corel was wrongly distributing them without their permission. Therefore, Bridgeman was arguing that they held a form of control over their images. However, the court ruled against the library arguing that Bridgeman’s digital reproductions lacked the ‘originality’ needed in order to produce a new copyright over the work.
Although this case is not binding in UK law, it is a well noted point in discussions on open data policies in GLAMs because it highlights a significant point about ownership of digital reproductions; namely that a digital reproduction lacks the originality needed to be viewed as a work with a new set of rights and so it cannot be claimed or controlled. Therefore, open data policies, such as the ones at the Rijksmuseum etc., build on this argument to produce digital collections of public domain works that are free to use by anyone in any way they see fit. In other words, open data policies relinquish all rights and claims of ownership over digital images of public domain works.
In terms of the GAM case, as far as I’m aware, none of the museums used by the company openly opposed GAM’s use of their works and, according to their policies, GAM was technically allowed to make these NFTs. This is perhaps why the Rijksmuseum tweeted in response to this Twitter thread their open data policy because it is evidence that GAM was not doing anything illegal.
Moreover, in my opinion, if GAM or any organisation wishes to make NFTs of museum collections, then it is important that they should partner with cultural institutions first before using a technology that is permanent and immutable. Blockchain is fairly unknown to the public and has often had negative connotations to it and so working with well-known and trusted institutions will support understanding of this space and could help to bridge the gap between the public and the blockchain community. I also question the NFT’s value if the museum has not been part of process of making them, furthermore, these NFTs depict works of art that are free to download from the museum website, so we might question what is the value of buying one of these NFTs – but I’ll leave these questions for another blog.
For now, this case has hopefully been a wakeup call for the GLAM sector because NFTs could be harmful if we do not acknowledge them. Indeed, the lack of regulations and universal consensus over how to approach issues such as the ‘garbage in, garbage out’ problem remain at the forefront blockchain applications and GLAMs need to be part of this conversation. This time the example might have ended up being a ‘social experiment’, but we might not be so lucky next time around.
Interested in exploring the use of blockchain in the cultural sector? Join the network: www.jiscmail.ac.uk/BLOCKCHAIN-CULTURAL
Art Institute of Chicago (2021) Art Institute Chicago: Open Access, The Art Institute of Chicago. Available at: https://www.artic.edu/ (Accessed: 15 March 2021).
Birmingham Museums (2021) Birmingham Museums Trust | Home Page. Available at: https://dams.birminghammuseums.org.uk/asset-bank/action/viewDefaultHome?browseType=accessLevels (Accessed: 15 March 2021).
Cameron, C. T. (2006) ‘In Defiance of Bridgeman: Claiming Copyright in Photographic Reproductions of Public Domain Works’, Texas Intellectual Property Law Journal, 15(1), pp. 31–62.
Clevland Museum of Art (2018) Open Access, Cleveland Museum of Art. Available at: https://www.clevelandart.org/open-access (Accessed: 15 March 2021).
Creative Commons (2021) Creative Commons — CC0 1.0 Universal. Available at: https://creativecommons.org/publicdomain/zero/1.0/ (Accessed: 15 March 2021).
Fouseki, K. and Vacharopoulou, K. (2013) ‘Digital Museum Collections and Social Media: Ethical considerations of ownership and use’, Journal of Conservation and Museum Studies. Edited by G. Papaioannou and T. Sali-Axioti, 11(1), pp. 1–10.
Gorgels, P. (2013) ‘Rijksstudio: Make Your Own Masterpiece!’, in Trant, J. and Bearman, D. (eds) Museums and the Web 2013: Proceedings. Museums and the Web, Toronto: Archives & Museum Informatics. Available at: https://mw2013.museumsandtheweb.com/paper/rijksstudio-make-your-own-masterpiece/ (Accessed: 13 December 2018).
Ito, K. and O’Dair, M. (2019) ‘A Critical Examination of the Application of Blockchain Technology to Intellectual Property Management’, in Treiblmaier, H. and Beck, R. (eds) Business Transformation through Blockchain: Volume II. Cham: Springer International Publishing, pp. 317–335. doi: 10.1007/978-3-319-99058-3_12.
OpenSea (2021) OpenSea: Buy Crypto Collectibles, CryptoKitties, Decentraland, and more on Ethereum, OpenSea. Available at: https://opensea.io/about (Accessed: 14 March 2021).
Rijksmuseum (2021a) From shirts to scooters … tips and examples, Rijksmuseum. Available at: https://www.rijksmuseum.nl/en/rijksstudio-inspiration (Accessed: 14 March 2021).
Rijksmuseum (2021b) Open Data Policy – Rijksmuseum, Rijksmuseum.nl. Available at: https://www.rijksmuseum.nl/en/research/conduct-research/data/policy (Accessed: 14 March 2021).
Siegal, N. (2013) ‘Masterworks for One and All’, The New York Times, 28 May. Available at: https://www.nytimes.com/2013/05/29/arts/design/museums-mull-public-use-of-online-art-images.html (Accessed: 14 March 2021).
Frances Liddell is a third year PhD student at the Institute for Cultural Practices and the organiser of the ‘Exploring Blockchain in the Cultural Sector’ conference. Her research involves working with the National Museums Liverpool and explores how NFTs might be implemented in museums to cultivate a sense of enchainment and shared guardianship between a museum and the audiences it serves