Copyright

A German Museum Tried To Hide This Stunning 3D Scan of an Iconic Egyptian Artifact. Today You Can See It for the First Time

After a three-year freedom of information campaign, everyone can finally see the Egyptian Museum of Berlin’s official scan of the Bust of Nefertiti.

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For more than a decade, museums around the world have been making high-quality 3D scans of important sculptures and ancient artifacts. Some institutions, such as the Smithsonian and the National Gallery of Denmark, have forward-thinking programs that freely share their 3D scans with the public, allowing us to view, copy, adapt, and experiment with the underlying works in ways that have never before been possible. But many institutions keep their scans out of public view.

The Louvre, for example, has 3D-scanned the Nike of Samothrace and the Venus de Milo. The Galleria dell'Accademia in Florence 3D-scanned Michelangelo's David. The Bargello has a scan of Donatello's David. Numerous works by Auguste Rodin, including the Gates of Hell, have been scanned by the Musée Rodin in Paris. The Baltimore Museum of Art got in on the Rodin action when it scanned The Thinker. The Metropolitan Museum of Art has scans of works by Bernini, Michelangelo, and many others. But instead of allowing them to be studied, copied, and adapted by scholars, artists, and digitally savvy art lovers, these museums have kept these scans, and countless more, under lock and key.

In Berlin, the state-funded Egyptian Museum and Papyrus Collection has a high-quality, full-color 3D scan of the most iconic portrait sculpture ever produced, the 3,364-year-old Bust of Nefertiti. It has held this artifact since 1920, just a few years after its discovery in Amarna, Egypt; Egypt has been demanding its repatriation ever since it first went on display. The bust is one of the most copied works of ancient Egyptian art, and has become a cultural symbol of Berlin. For reasons the museum has difficulty explaining, this scan too is off-limits to the public.

Rather, it was off-limits. I was able to obtain it after a 3-year-long freedom of information effort directed at the organization that oversees the museum.

In August 2016, with the help of the Berlin-based attorney and law professor Kristoff Ritlewski, I sent the Egyptian Museum a request for the scan, citing German freedom of information laws, which grant everyone an unconditional right to access official information from federal agencies. That goes for any official record—conventional files, electronic records, drawings, graphics, plans, and sound or video recordings.

The museum quickly referred the matter to the Prussian Cultural Heritage Foundation, which oversees Berlin's state museums. The foundation—known in German as the Stiftung Preußischer Kulturbesitz (SPK)—is one of the largest cultural organizations in the world. When it received my records request, it acknowledged the existence of the Nefertiti scan and acknowledged that the organization was required by law to give me access to it. But it also declared that directly giving me copies of the scan data would threaten its commercial interests. The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts.

In museum-world parlance, this argument against open access is known as "the gift shop defense."

While the law required it to grant me access to the scan, it also gave SPK discretion over the mode of that access. The foundation offered to let me "inspect" the data in a controlled setting, either in its offices in Berlin or, since I live in southern California, at the German consulate in Los Angeles.

The organization was treating its scan of Nefertiti like a state secret.

My ultimate goal in all this was to convince SPK to make its scan freely available to the public, without any access or usage restrictions. A mere inspection of the scan would be worthless to me, but I wanted to see SPK's definition of legally mandated "access" in action before I pressed them further. I accepted their offer to inspect the data at the consulate, but the consulate then mysteriously withdrew its offer to assist. Instead, SPK made arrangements for me to inspect the scan at the Los Angeles office of the law firm WilmerHale, one of the most expensive, well-connected law firms in the world.

The inspection was, as I anticipated, absurd. I told SPK as much, though in more diplomatic terms. The foundation had provided a slow, underpowered laptop that was barely capable of displaying the large files. You can watch my video of the inspection here:

Without direct transmission of the data to me, it was simply impossible to effectively examine the scan, let alone learn anything new about the original artifact.

I told SPK the inspection was inadequate. I asked them to reconsider their position, and to prioritize the benefits to the public of open access over gift shop revenue.

I also made a new freedom of information request, this time for info about that revenue. I asked for records of their revenue from the sales of replicas of any artifacts, including the Bust of Nefertiti, that were derived from their scans. I asked for records of revenue from the licensing of any of their scan data to third parties. And I asked for any records that demonstrated how that revenue was directed to digitization projects. Finally, I asked them if they would accept a financial donation in exchange for making their Nefertiti data freely available to the public and, if so, what their price was.

SPK's response, five months later, was revealing.

The foundation rejected the idea of accepting a donation in exchange for unrestricted public access to the Nefertiti scan, but it nonetheless invited me to negotiate over terms and a price for a license to use the scan for my own commercial purposes.

SPK confirmed it had earned less than 5,000 euro, total, from marketing the Nefertiti scan, or any other scan for that matter. SPK also admitted it did not direct even that small revenue towards digitization, explaining that it was not obliged to do so. In the nearly 10 years since it had created the Nefertiti scan, SPK had completely failed to commercially exploit the valuable data idling on its hard drives.

All SPK's reasons for not giving me the Nefertiti data fell apart. The gift shop defense had been smoke.

As if in recognition of this, there was something else in their response—something I did not expect. A USB drive containing the Nefertiti scan.

SPK reiterated that it had no legal obligation to give me the data in this direct format. I was receiving the scan this way, the organization explained, only to address my specific concerns about being able to examine it effectively. The foundation emphasized that it was providing this to me only for informational purposes, not for commercial use. It was SPK's way of saying, "Here it is, now leave us alone."

While it was satisfying to see SPK bend, what I'd really wanted was for them to liberalize their policy and make the Nefertiti data available to everyone, without usage restrictions. But they'd given it only to me, and they had prohibited commercial uses. By fulfilling their legal obligations, even if so narrowly, I no longer had freedom of information laws as a tool to push SPK for wider access.

When I looked at the data for the first time, though, there was another surprise.

To mark their territory, SPK had inartfully carved a copyright claim directly into the flat underside of the 3D model. And without explanation, it had included a Creative Commons "CC BY-NC-SA" license.

It's unclear which elements of their digital copy of the Bust of Nefertiti SPK imagines it has a copyright in. The original artifact is clearly in the public domain. And copyright attaches to original works; copyrighting a copy doesn't make sense. Especially if the original is in the public domain. It has a chilling effect on the public's lawful use of public domain works, and creates paradoxes in enforcement. In any event, whatever you make of SPK's ambiguous copyright graffiti, there can be no doubt about the meaning of the Creative Commons license. It requires users of the data to identify the original source of the material, and it bars commercial uses. But it also explicitly allows for the copying, redistribution, adaptation, and transformation of the data. The license also states that users "do not have to comply with the license for elements of the material in the public domain."

So there it is; SPK appears to have almost completely buckled.

I say almost because, even after all this time, they still left it to me to actually put their Nefertiti scan online and make it available to a wider audience. They should be embarrassed. I don't have curators, an administrative staff, or a legal department. SPK, with its state-sponsored mission to serve the public, has an extensive web presence and a 390 million euro annual budget.

You'd think SPK could spend half an hour throwing a webpage together and uploading the data for everyone to access. But they haven't, so I've done it for them.

I've put SPK's Nefertiti scan online, exactly as I received it, under the terms of the Creative Commons license. You can download it here. All my correspondence with SPK is available here.

Unfortunately, SPK's stalling tactics and bad-faith arguments are not unique. (I've gone through something similar in my efforts to get the Rodin Museum in Paris to release its unpublished scans.) I hope other museums will see SPK's policy as an example of what not to do with their 3D data.

SPK cried poverty to protect a tiny amount of gift shop revenue that it falsely purported to spend on digitization efforts. It tried to enlist the help of Germany's diplomatic apparatus, and it engaged a heavyweight law firm to assist in a scheme to prevent me—and you—from looking too closely at a 3,364-year-old portrait of an Egyptian royal.

But now that scan is online. If you do something interesting with it, please show it off, share this story about where the data came from, and let me know. Let SPK know too.

NEXT: SCOTUS Declines To Intervene in Lawsuit Blaming Gun Maker for Sandy Hook Massacre

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  1. Great, another cosmo

  2. Well done! Thank you for persevering.

  3. I see a face but I don’t see any bust on it.

    thankyougoodnight!

    1. You laugh, but my father-in-law once said to me with zero irony (referring to an article he was reading), “It says here it’s a ‘bust,’ so I guess that means it’s of a woman.”

      1. I had a conversation with a woman’s bust but her face kept interrupting.
        I’m libertarian but even I thought it was rude.

  4. Well done Cosmo.

  5. That’s not her bust.

  6. I hope other museums will see SPK’s policy as an example of what not to do with their 3D data.

    Don’t hand it over begrudgingly?

  7. Just a matter of time before that face is on a sex toy. I’d hit it.

    1. “Now you too can feel like the chosen of Aten. Buy your very own Nefertiti RealDoll while supplies last.”

      1. Surely Nefertitti!

  8. The bust may be public property, but the scan as such is protected by copyright.

    This comment not approved by Silicon Valley brain slugs.

    1. The scan would be protected by copyright if it had been made by a private entity. Even though it’s a copy of something in the public domain, there is a transformation of the information in the process of making the copy that is sufficient to trigger copyright protections.

      That issue, however, is waived since german law makes things created by their own federal agencies part of the public domain. US law does the same thing for images created by US agencies.

      1. Nah, by US copyright law if the thing being scanned isn’t copyrightable (like the bust) then no scan of it could be copyrighted. I’ll admit I’m not sure whether German copyright law is identical, but nearly all the G7 have functionally identical copyright law so I would assume so.

        1. Nope, that is not true even in the US.

          Phone numbers are non-copyrightable because they are simple facts. They are also (in most cases) in the public domain. Nevertheless, phonebooks are definitely copyrightable because of the effort and choices made while compiling and transforming that public information. The “standard for creativity” is extremely low. Multiple courts all the way up to and including SCOTUS have said that even minimal choices about what data to include, the order and style in which the information is presented, etc are sufficient to trigger copyright protection.

          The 3D scan of a sculpture layers on creative decisions about resolution, information format, transformation of physical colors to codes, etc.

          By the way, the interpretation above (about minimal creativity being the threshold) is controlled in the US by Feist Publications, Inc., v. Rural Telephone Service Co. Contrary to your assumption above, most other nations still follow the “sweat of the brow” doctrine of copyright. A recent case in Germany on digital transformations of physical media was decided on exactly that basis. See Reiss-Engelhorn Museum v. Wikimedia Foundation.

          1. It seems likely that any arguments that might suggest a sufficient level of creativity under U.S. law may conflict with the purpose and nature of the scanning technology, is to produce a faithful exact, slavish copy, which is not likely to be protected under U.S. law. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.
            This story, and the copyright claim/notice, is one more reason to remain skeptical of what the Germans would have us believe https://www.youtube.com/watch?v=9miLGPXBs4w

      2. That issue, however, is waived since german law makes things created by their own federal agencies part of the public domain.

        The museum is operated by a non-profit, not a federal agency.

  9. Philistines…
    It’s a beautiful work of art. Thank you for making the scan available.

  10. Learning from eBay folks, I’ll 3D print these free of charge and charge $99.99 for shipping. That’s cool, right?

  11. Obviously it’s a fake. Everyone woke knows ancient Egyptians were really African Americans.

    1. You know they’ve found cocaine in ancient mummies?

  12. >>under lock and key

    because David might be *in the statue*?

  13. At least it’s not the Ark of the Covenant.

    1. Everyone knows that it is in Ethiopia. Brought there by the son of the Queen of Sheba. It is in a small chapel in Askum in the mountains and guarded by a single monk. However it is likely that the monks created multiple copies and the one in Askum is a fake while the actual ark is hidden elsewhere.

      Or it is in a government warehouse in Virginia in a wooden crate. Or Jordon, or is that the Holy Grail?

  14. Someone should face criminal charges for carving their copyright info into the base.

    1. Not sure if you were trying to be funny, but the copyright notice was added to the digital scan, its not on the original. Sorta photo-shopped in.

  15. What do they mean “repatriate”? What happened to “finders keepers?”

  16. Holy crap the ones they sell are $9,8000!

  17. So what was their real motivation? Just to feel important?

    1. That is an interesting question. What Cosmo did and published here is very Indiana Jones.

      The value of this object in terms of art, archeology, history, is not measurable in a monetary sense.

      It was discovered in Egypt by a German archeologist who somehow got it back to Germany. Egypt would like it back. If stolen who knows what someone would pay for such a thing.

      Then the scholarly types tend to be very possessive and cloistered. If you know the guitar collection scene in Spinal Tap that is a riff on that “never been played. Don’t touch it. Don’t, even look”

      So to those who control the sculpture you and I don’t belong there. We don’t want a bunch of sweaty tourists anywhere near her. Reluctantly you can view her in small groups in a highly controlled environment. Even the 3D reconstruction we slaved over is ours.

      My take on it.

    2. The people employed by public museums and libraries view the institutions as their personal property.

  18. Very awesome cool. Thanks.

  19. When I visited the bust at the museum there were signs forbidding photographing it, and a guard in the room to ensure the prohibition was carried out.

    1. That prohibition is generally justified by protecting the object from the detrimental effects of camera flashes.

      It made sense at one time when bright lights were necessary to take a good quality photograph.

  20. I guess you can say the museum keeping it a secret was a…..

    /dons sunglasses.

    A bust.

    I’ll show myself out.

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  22. There are other memory holes and data roadblocks. In 1987 Reagan, Biden, the entire House & Senate started an asset-forfeiture drive that crashed he economy as in 1929 and early 1933. The text of H.R.5210 — 100th Congress (1987-1988) is carefully hidden except in a mangled, uncorrected OCR text file. That prohibition law, like the Volstead Act amended by the Jones Five & Ten Law, chased money out of banks and brokerages. That, in our fractional-reserve banking system, wrecked the economy. Yet Bush Jr used this same law to unleash faith-based asset forfeiture that wrecked the subprime mortgage market in 1987-88. Surely we should be able to examine clean text of that law, no? Try it!

  23. By the way, the PDF in the download makes the copyright claim explicit. Here’s the text.

    © 3D Model: Ägyptisches Museum und Papyrussammlung, Staatliche Museen zu Berlin – Preußischer Kulturbesitz |
    ID No.: aem_aem21300_3dsl01_mo08-03_p.obj. Copyright restrictions apply.
    licensed under a Creative Commons Attribution- NonCommercial-ShareAlike 4.0 International License
    Digital Permissions Services for Commercial Users contact:
    contact@bpk-bildagentur.de

  24. I have some Italian scans that were given me for asking. Their reason for not being publicly online is that they are valuable cultural artifacts that ought to be treated respectfully.

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