The Copyrightability of Cultural Heritage: A Case Study of the Legal Battle over the Nefertiti Bust

This legal uncertainty poses potential risks concerning public access to and use of such 3D scans and may permit private companies, museums, and even governments to effectively extend legal control over the image of an antiquity, even after it has deteriorated or been destroyed altogether. In some instances, the entity creating the scan possesses the antiquity, such as in the case of a museum scanning an object in its collection, while in other cases the scan is taken by a third-party entity that does not control the antiquity. This is the situation with 3D scans taken by Google of the Moai sculptures on Easter Island, which are at risk of destruction due to rising sea levels, and by the Russian government of the ancient city of Palmyra, Syria, which suffered extensive damage at the hand of the Islamic State.² There may be a day when such cultural heritage no longer exists, and the question becomes whether the entity that created the 3D scan owns the sole remaining image of the work.

The issue of the copyright status of 3D scans emerged in the context of a dispute over the 3D scan of the Bust of Nefertiti (Nefertiti Bust), but it has not received examination in legal literature. In the next sections, this article proceeds by discussing the Nefertiti Bust dispute and intellectual property implications, analyzing the legal status of 3D scans of antiquities under existing United States copyright law, and examining new European Union guidance that addresses this issue. This article argues that, under United States law, 3D scans of cultural heritage do not contain sufficient original authorship based on analogous precedent and should be considered to be in the public domain.

The Procurement of the Nefertiti Bust 3D Scan

The Nefertiti Bust controversy demonstrates how 3D imaging technology is creating new legal questions relating to ancient artifacts that will help to shape a new era of arts preservation and restitution. Since 1913, the 3,500-year-old Nefertiti Bust, one of the most famous objects from Ancient Egypt, has resided in the Neues Museum in Berlin, Germany. The original statue has remained in the museum despite pleas from Egypt for its return.³ In more recent years, those pleas turned to requests for the museum to release a 3D scan of the sculpture so that cultural institutions and individuals around the world would be able to freely replicate and use the work. Following a multiyear international legal and ethical battle, the museum eventually released the 3D scan of the Nefertiti Bust in November 2019.⁴

Before the museum’s release of the 3D scan in November 2019, it was common knowledge that the museum had the scan in its possession, presumably for conservation and research purposes, but it was not accessible to the public.⁵ The museum also prohibited visitors from taking photographs or videos of the Nefertiti Bust, essentially creating a monopoly on the structure, shape, and look of the sculpture.⁶ As a reaction, in 2016, two German artists, Nora Al-Badri and Jan Nikolai Nelles, claimed that they had taken a high-resolution 3D scan of the Nefertiti Bust by surreptitiously circling the sculpture using a mobile device. Months later, the artists released the scan to the public. At first, the news coverage was bemused and impressed, but soon the artists’ claims came under scrutiny.⁷ Experts in the 3D scanning field claimed that such high-quality images could not have come from a mobile device and could not be the product of the two artists’ alleged scan of the Nefertiti Bust.⁸ The artists neither confirmed nor denied the source of the 3D scan, stating: “Maybe it was a server hack, a copy scan, an inside job, the cleaner, a hoax, but who cares, first of all it is an art piece.”⁹ The museum neither released its scan nor confirmed a relationship between Al-Badri and Nelles’s scan and its own. The story only became more convoluted from there.

Cosmo Wenman, an artist and 3D scanning specialist, was one of the people to accuse Al-Badri and Nelles of falsifying their story of the Nefertiti Bust 3D scan. At that same time, Wenman began the arduous task of using Germany’s freedom of information laws to force the museum to release its scan of the Nefertiti Bust. Because of its status as a state museum, the museum referred the inquiry to the Prussian Cultural Heritage Foundation, a German state agency. Wenman was in a unique position to seek the scan using a legal mechanism given the museum’s standing as a state-run institution. As a consequence, the 3D scan was considered federal information subject to Germany’s freedom of information laws, meaning that the German state agency had a legal obligation to release the 3D scan. While it is common in Europe for museums to be state-owned, that is not always the case, particularly in the United States where the majority of cultural institutions are private.¹⁰

The German agency confirmed the existence of a 3D scan of the Nefertiti Bust but stated that it could not provide the 3D scan because that action could threaten the museum’s income from sales of Nefertiti Bust replicas. According to Wenman, the agency “was treating its scan of Nefertiti like a state secret.”¹¹ Following a second freedom of information request on the question of revenues derived from the Nefertiti Bust, the agency informed Wenman that it made less than 5,000 euros related to products derived from the scan.¹² In 2019, after continued efforts spanning three years, the museum gave Wenman a USB stick containing the 3D scan without any public acknowledgment. That moment marked the end of Wenman’s journey to obtain the official 3D scan, which is the subject of the analysis in the following sections, and the start of a new tangled copyright question.

The Potential Privatization of a Public Domain Object

There is no doubt that the Nefertiti Bust itself is not protected under copyright law—it was created long before copyright law existed, and, even under the world’s longest copyright protection period, the Nefertiti Bust’s term of protection would have expired thousands of years ago.¹³ The work itself must be in the public domain, meaning that it is not subject to any copyright restrictions. However, as Wenman inspected the Nefertiti Bust 3D scan, he found an engraving on the bottom of the scanned object.¹⁴ The inscription was a unique type of intellectual property license that prohibits the use of the scan for commercial purposes and requires attribution of the creators of the scan. But what was a copyright license doing on the 3D scan of a public domain work, and could such a license be enforced?

There are various ways in which a work may come to be in the public domain, including when a work does not contain copyrightable subject matter, when a copyright owner chooses to release a work without copyright restrictions, or when a term of copyright ownership has expired. In the United States, a copyright owner of a work registered with the U.S. Copyright Office has a number of exclusive rights, including the rights to reproduce a work, create derivative works, and distribute copies of the work, among others.¹⁵ When a work is in the public domain, these exclusive rights no longer apply, and members of the public are free to use the work in ways that may otherwise require permission from a copyright owner. Generally, a registered work is protected by copyright law for a certain length of time before entering the public domain, at which time the public can freely copy or use it. The purpose of this system is to balance the public’s access to creative works and copyright owners’ right to protect their works and profit from them.

The license carved into the bottom of the Nefertiti Bust scan was a version of a Creative Commons (CC) license. CC licenses are public copyright licenses that allow copyright holders of works afforded copyright protection to remove use and sharing restrictions on works protected by copyright law, a kind of quasi-public domain since the copyright holder is not required to release all of his or her exclusive rights in the work.¹⁶ There are a variety of CC licenses—the most permissive essentially mimics the public domain, while more restrictive versions specify that a work is still subject to a range of restrictions. For example, these restrictions include that any use must be limited to noncommercial purposes, include attribution, or include a share alike restriction. The CC license etched into the Nefertiti Bust scan allowed only for nonprofit uses of the 3D scan and required that future uses contain an attribution line to the creators of the 3D scan. If the 3D scan were not subject to copyright protection, however, any and all uses would be permissible.

While the inclusion of a CC license cannot legally take an object out of the public domain, its presence on works not subject to copyright protection can deter otherwise legal uses of public domain works.¹⁷ As described by the primary investigator on a study conducted by the Georgia Institute of Technology, where a creator is “told that their work would definitely be infringing if they don’t get permission from the copyright holder,” that position may create a chilling effect and discourage the creator from making otherwise permissible uses of the underlying work.¹⁸ To the average user, the appearance of a license indicates that the work is protected by copyright and that the terms of the license should be adhered to; otherwise, the user would think that he or she is risking copyright infringement. According to Professor Niva Elkin-Koren, an intellectual property expert, the “lack of standardization” across the variety of CC licenses in particular “further increases the cost of determining the duties and privileges related to any specific work,” which may create hesitancy among users.¹⁹ A user might decide to refrain from using a work in a certain manner or altogether based on the mere appearance of a CC license, even if the license itself is improper. These analyses indicate that the presence of a CC license may have the effect of dissuading a user from making an otherwise legitimate use of a work due to the license’s complexity and caution.

In the circumstance of the Nefertiti Bust, the appearance of the CC license on the scanned version of the bust implied that the museum was claiming copyright rights in the 3D scan since the Nefertiti Bust itself is in the public domain. After all, the museum would only be able to restrict usage of the 3D scan under copyright law if it was the copyright owner of the scan itself. Otherwise, if the scan were in the public domain, members of the public would not need permission to use the scan for any purpose, and it would be improper for the museum to place restrictions on such uses. Thus, in effect, the museum’s unexplained decision to include a CC license on the 3D scan of the Nefertiti Bust was an indicator that it claimed sole ownership thereof and intellectual property rights therein. By convention, users are likely to abide by the restrictions imposed by the CC license—or perhaps forgo use of the 3D scan altogether.

Application of Copyright Law to Emerging 3D Scanning Technology

The question becomes whether the museum legally has enforceable intellectual property rights in the Nefertiti Bust 3D scan, given that the underlying work is in the public domain. If not, the restrictions set forth in the CC license would seem to improperly impede use of the Nefertiti Bust 3D scan. To be sure, the copyright world contains both the improper labeling of nonexclusive materials as subject to certain restrictions and the improper labeling of licensed materials as in the public domain or under a CC license. This article focuses on one issue within that range of concerns. As analyzed in this section, the near-identical 3D scan of the Nefertiti Bust likely does not contain the requisite original authorship under United States law to allow for registration with the U.S. Copyright Office.

To be registrable with the U.S. Copyright Office, a work must qualify as an “original work[] of authorship fixed in any tangible medium of expression.”²⁰ In Feist Publications, Inc. v. Rural Telephone Service Co.,²¹ the U.S. Supreme Court instructed that “originality” entails independent creation and creativity. While the creativity threshold is minimal, there are routinely works that fail to meet even this low bar. In that case, the Supreme Court also rejected the “sweat of the brow” doctrine, under which a factual work can gain copyright protection based on the skill or hard work expended in creating the work, as “flout[ing] basic copyright principles.”²² Relatedly, the Supreme Court held that a photograph may contain copyrightable subject matter where the creator makes certain creative choices regarding the subject matter and setting, such that the photograph becomes “the product of [the photographer’s] intellectual invention.”²³

In the United States, the copyrightability of 3D scans of antiquities has not yet been evaluated by the courts, but analogous cases indicate that 3D scans of public domain works are not protectable. Museums have a long history of claiming copyright ownership of high-quality two-dimensional reproductions of public domain works in their collections, such as photographs of paintings, but precedent indicates that such claims may not be based on actual copyright ownership.²⁴

The leading case on this topic, Bridgeman Art Library, Ltd. v. Corel Corp.,²⁵ has shaped the approach taken by museums across the country. In that case, Bridgeman licensed reproductions of public domain artwork and claimed exclusive rights in those reproductions. Corel, a software company, advertised a CD-ROM set that contained reproductions of numerous images in the public domain, some of them being ones in which Bridgeman claimed exclusive rights. Bridgeman thereafter brought a claim of copyright infringement against Corel over those reproductions of public domain works. The Southern District of New York held that where works are merely “‘slavish copies’ of public domain works of art,” then the works do not contain the necessary “spark of originality” to warrant copyright protection.²⁶ Thus, Bridgeman’s reproductions did not contain copyrightable subject matter.

While Bridgeman is not binding precedent, it has been particularly influential as the leading persuasive authority on the issue of reproductions of public domain works.²⁷ In fact, the case may have so plainly resolved this issue that museums avoid bringing claims against people who are making use of museum-provided reproductions of public domain works, even where the museum typically requires a fee or license, so as not to draw attention to museum practices that may be operating in a gray area.²⁸

Relatedly, in Meshwerks Inc. v. Toyota Motor Sales USA, Inc.,²⁹ the Tenth Circuit Court of Appeals later held that certain digital models of cars were not copyrightable. These models were not 3D scans in the same vein as the Nefertiti Bust but rather relied on “copious measurements of . . . vehicles” and were then manually modeled to match the vehicles as closely as possible.³⁰ The Tenth Circuit held that these models did not contain sufficient originality to merit copyright protection because they were meant to depict “vehicles as vehicles,” meaning that the models were stripped of “all lighting, angle, perspective, and ‘other ingredients’ associated with an original expression.”³¹ This case tells us that a digital model, while perhaps more complex to make than taking a photograph, is not registrable where it serves only to replicate the original item itself and is not injected with the author’s own original expression.

These cases indicate that where a model or reproduction merely replicates an underlying work, whether or not the original work is in the public domain, the model or reproduction does not contain sufficient originality due to the lack of new creative expression. It follows that the 3D scan of the Nefertiti Bust would not be eligible for copyright registration in the United States because it is, by all accounts, a “slavish copy” of the underlying work. Its very purpose is to replicate the sculpture as closely as possible. Rather than making creative choices, like those that a photographer might make in the staging of a photograph, the creators of the 3D scan necessarily had to make technical choices with the purpose of copying the underlying object. Thus, the 3D scan likely does not contain sufficient creative expression.

Moreover, the technology-forward medium of the Nefertiti Bust 3D scan, which is more in line with a digital model as opposed to a photographic reproduction, does not inherently confer originality. Additional effort or skill required as a result of the use of novel imaging technology cannot create copyrightable subject matter where it does not otherwise exist.

Based on the publicly available facts, it appears as though the Neues Museum was the entity that inscribed the Nefertiti Bust scan with the CC license. As analyzed under United States law, this was likely an incorrect usage of the CC license and may have a chilling effect on the scan’s use by the public. Absent further information, United States legal precedent would seem to weigh in favor of releasing the Nefertiti Bust scan not subject to any copyright-related use restrictions. The underlying work, of course, is in the public domain, meaning that the museum does not appear to have any way to claim copyright ownership of the Nefertiti Bust itself either.

The International Perspective

There is no international copyright law, meaning there is not one statute or case to which legal scholars can look to determine whether a work is protected by copyright law around the world.³² While it is difficult to ascertain the exact treatment of 3D scans around the world, the idea that copyright law does not protect “replica” works is echoed in the laws of other countries.

Notably, the European Union Copyright Directive (Directive 2019/790), which member states were required to implement by June 7, 2021, includes a provision covering exactly this topic in relation to public domain works. In relevant part, the provision reads: “an act of reproduction of [a work of visual art in the public domain] is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.”³³ A group of European scholars opined that this provision “should . . . cover faithful reproductions of 3D objects (e.g. by plaster casts, 3D-reproductions and prints) which are in the public domain, provided their purpose is merely to reproduce the original object in question faithfully and not to transform it in any creative way.”³⁴ This provision is particularly applicable to the Nefertiti Bust, and will be to millions of other objects across the European Union as Directive 2019/790 is implemented over the coming years.

While the European Union appears to be making explicit policy strides in this area, the United States legal system is not far behind when precedent are viewed in context. The trend around the world points toward declining to extend copyright protection to 3D scans that only serve to replicate creative works.

Conclusion

The Neues Museum’s course of action raises a host of complications around the world. If an institution can essentially extend the copyright protection of a work by creating a 3D scan thereof, then it can control who can reproduce the object using the scan, who can incorporate the scan into new creative works, and who can distribute copies of the scan. This could affect, for instance, restoration efforts of an ancient site that rely on 3D scans conducted by a private company if that company requests a political favor or exorbitant fee. And restitution attempts may become more complex if a museum returns a work to a party but asserts copyright ownership over a 3D scan thereof and refuses to let the party use the scan. Fortunately, the Neues Museum is a state-run museum, meaning that individuals could seek the release of the Nefertiti Bust 3D scan through Germany’s freedom of information laws and publicly analyze its contents. The public will not be so lucky in every case.

Although museums, private entities, and governments are not required to release such 3D scans in many instances, when they opt to or are obligated to under law, they should release them in accordance with applicable copyright law, including considering whether copyright-related restrictions are appropriate. Numerous cultural heritage sites and works of ancient art are in the public domain, and, as complex restitution and restoration discussions take place against a backdrop of possible destruction, 3D scans of these works are taking on increasing value. These new challenges only highlight the importance of permitting use of 3D scans of antiquities to the greatest extent allowed under law, since they may one day become the only surviving documentation of many invaluable works.

Endnotes

1. Charly Wilder, Swiping a Priceless Antiquity . . . with a Scanner and a 3-D Printer, N.Y. Times (Mar. 1, 2016), https://www.nytimes.com/2016/03/02/arts/design/other-nefertiti-3d-printer.html; Sophia Kishkovsky, Russian Team Creates 3D Model to Preserve Palmyra as Fighting Intensifies, Art Newspaper (Jan. 20, 2017), https://www.theartnewspaper.com/news/russian-team-creates-3d-model-to-preserve-palmyra-as-fighting-intensifies.

2. Kishkovsky, supra note 1; Themes, Google Arts & Culture, https://artsandculture.google.com/project (last visited Aug. 23, 2021).

3. German Foundation Refuses to Return Nefertiti Bust, Reuters (Jan. 24, 2011), https://www.reuters.com/article/us-germany-egypt-nefertiti/german-foundation-refuses-to-return-nefertiti-bust-idUSTRE70N6N220110124.

4. Hakim Bishara, Official 3D Scans of Nefertiti Bust Are Released after Three-Year Battle, Hyperallergic (Nov. 26, 2019), https://hyperallergic.com/530400/official-3d-scans-of-nefertiti-bust-are-released-after-three-year-battle.

5. Wilder, Swiping a Priceless Antiquity, supra note 1.

6. Bishara, supra note 4.

7. Wilder, Swiping a Priceless Antiquity, supra note 1; Charly Wilder, Nefertiti 3-D Scanning Project in Germany Raises Doubts, N.Y. Times (Mar. 10, 2016), https://www.nytimes.com/2016/03/11/arts/design/nefertiti-3-d-scanning-project-in-germany-raises-doubts.html.

8. Wilder, Nefertiti 3-D Scanning Project in Germany Raises Doubts, supra note 7.

9. Id.

10. Nicholas O’Donnell, How Far Can Museums Go to Stay Afloat during the Current Crisis?, Apollo (Apr. 27, 2020), https://www.apollo-magazine.com/museums-coronavirus-crisis.

11. Bishara, supra note 4.

12. Cosmo Wenman, A German Museum Tried to Hide This Stunning 3D Scan of an Iconic Egyptian Artifact. Today You Can See It for the First Time, Reason (Nov. 13, 2019), https://reason.com/2019/11/13/a-german-museum-tried-to-hide-this-stunning-3d-scan-of-an-iconic-egyptian-artifact-today-you-can-see-it-for-the-first-time.

13. It is generally accepted that the Statute of Anne, passed by the Parliament of Great Britain in 1710, was the first copyright law to be established by a government in the world.

14. Wenman, supra note 12.

15. 17 U.S.C. § 106.

16. See About CC Licenses, Creative Commons (2019), https://creativecommons.org/about/cclicenses.

17. Frequently Asked Questions, Creative Commons (June 15, 2021), https://creativecommons.org/faq.

18. Copyright Research Finds That User Confusion Has “Chilling Effects” in Online Creative Publishing, Ga. Tech. GVU Ctr., https://gvu.gatech.edu/copyright-research-finds-user-confusion-has-chilling-effects-online-creative-publishing (last visited Aug. 23, 2021); see Casey Fiesler et al., Ga. Inst. of Tech., Understanding Copyright Law in Online Creative Communities, in Proc. of the 18th ACM Conf. on Comput. Supported Coop. Work & Soc. Computing 116 (2015), https://cfiesler.files.wordpress.com/2014/10/fiesler_cscw2015.pdf.

19. Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons, 74 Fordham L. Rev. 375, 410 (2005).

20. 17 U.S.C. § 102(a).

21. 499 U.S. 340, 345 (1991).

22. Id. at 354.

23. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884).

24. Robin J. Allan, After Bridgeman, Copyright, Museums, and Public Domain Works of Art, 155 U. Pa. L. Rev. 961, 962 (2007).

25. 36 F. Supp. 2d 191 (S.D.N.Y. 1999).

26. Id. at 197.

27. Jerry G. Fong, Legal Issues regarding Innovative Museum Services in a Mobile and Cloud Computing Environment: Examples of Copyright and Licensing Issues for the National Palace Museum, in Managing Innovation and Cultural Management in the Digital Era: The Case of the National Palace Museum 110, 118 (Rua-Huan Tsaih & Tzu-Shian Han eds., 2016).

28. Bernard Starr, Must You Pay to Use Photos of Public Domain Artworks? No, Says a Legal Expert, HuffPost (Nov. 12, 2012), https://www.huffpost.com/entry/museum-paintings-copyright_b_1867076.

29. 528 F.3d 1258 (10th Cir. 2008).

30. Id. at 1260.

31. Id. at 1266, 1270.

32. This article does not address intellectual property–related doctrines, such as moral rights; international cultural heritage treaties; or German law, some or all of which may have an effect on the analysis herein.

33. Council Directive 2019/790, art. 14, 2019 O.J. (L 130) 92 (EU), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN.

34. Comment of the European Copyright Society on the Implementation of Art.14 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market 3 (Apr. 26, 2020), https://europeancopyrightsocietydotorg.files.wordpress.com/2020/04/ecs_cdsm_implementation_article_14_final.pdf.