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Image Archives and Fair Use
Virginia M.G. Hall, Christine Steiner, and Christine Sundt
DEFINITIONS
Image - a unique photographic representation of an object (e.g., an "original" 35mm color slide) or a photographic reproduction of an object ("duplicate" slide) usually issued in multiple copies. The term "image" in this discussion will be limited to representations or reproductions of art (painting, sculpture, decorative or craft objects, graphics media [including drawings and artprints], collages, mixed media, and electronic media) and architecture. Images are typically surrogates for the represented works of art; their intrinsic value is primarily as documentation of the original object (e.g., a slide representing the Mona Lisa, a photograph of the Eiffel Tower, a color print of Warhol's Brillo Pads).
Image Archive - a collection of images of art or architecture acquired and maintained by an organization such as a non-profit library, museum, or school. A slide collection is an example of an image collection; a CD-ROM such as the Microsoft Gallery National Gallery of London is also an image collection. An image archive is a collection of collections of different formats of which slides and CD-ROMs are but two examples. Images in archives derive from numerous sources: from commercial vendors of images, from work-for-hire, from donations by amateur and professional photographers, and photographs from reproductions in books and journals (a longstanding practice lacking consensus in the community as to whether it is fair use).Electronic Image a digital representation or a reproduction of a photographic representation or reproduction of an object described above.
FAIR USE and IMAGE ARCHIVES
Images of art and architecture are typically sold by image brokers (commercial vendors) who have made photographic reproductions pursuant to a negotiated non-exclusive right with the creator of the object (artist, architect, designer, etc.), or who have acquired a reproduction license to market images made from public domain objects owned or controlled by museums or corporations.
Images made from art reproductions in books and journals for purposes such as teaching or research for inclusion in an image archive are understood to be a fair use when photographic representations of the objects are no longer available or reasonably accessible from commercial vendors, the object's creator, or the owner of the work. The practice of reproducing images included with copyrighted text for the uses specified above is a longstanding practice in education and the subject of vigorous debate within the community, although there have been no cases addressing this practice.
Courses utilizing great quantities of projected images in a classroom (a typical art history lecture requires an average of 50 different images per class period) could not be offered unless the use was considered fair for each copyrighted image. It is not uncommon for different images to be used the next time the course is offered. Multiple images (views) of the same object are commonly presented. In practice, images are typically arranged in sequences or sets for comparison or contrast. In order for an image to be useful, it must be reproduced in full.
Assuming a fair use of copyrighted materials in providing images for the purposes stated above, permissions are not sought. Permission is requested only if the use of the image is for other purposes, such as publication, use in a performance, or in circumstances where profit and/or commercial advantage is the motive for the use. Making additional reproductions of fair-use images is, in practice, prohibited.
ELECTRONIC IMAGE ARCHIVES
Electronic images of art and architecture are essentially the same as analog images of art and architecture. The content is the same, only the format for delivery is different.
Electronic image archives already exist, mostly as pilot projects, at many sites, including libraries, museums, and universities. Some but not all are also accessible through the Internet.
Electronic image archives administered through universities and libraries are essentially interactive teaching tools that students can access either at terminals located within an institution, or from outside through either a closed-circuit network or, for some, the Internet.
Image archives provide a more efficient review mechanism for students than previously possible with "review boards" (analogous to reserved materials in a library) where photographs, illustrations (including photocopies), or illuminated slides are displayed after lectures. Image review is a common practice within educational institutions.
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STATEMENT OF PROBLEMS RELATING TO FAIR USE IN ELECTRONIC ENVIRONMENTS
Fair use is inadequately defined for images and thus poorly understood for most transmissions of images.
During transmission, a copy of the image is made. This adds another layer to the already multi-layer ownership question surrounding an image. Is the image of an artwork the property of the creator (if still under copyright) or the photographer or the repository maintaining it? This is never as self-evident as it is with a text object such as a book or a journal article.
Licensing arrangements devised for text materials are inappropriate for managing rights to images. Fees collected by copyright organizations today only apply to the text matter. Models similar to those used for administering music rights have been proposed for images, but fair use has no role in these models. There are initiatives underway. The Museum Educational Site Licensing Project is a two-year initiative that will develop model site licensing agreements to enable the academic use of digitized images and texts from museum collections. Terms and conditions of such use will be defined, and user needs and responses evaluated. Administrative mechanisms will be proposed and existing and emerging data and technical standards for the distribution of text and images will be tested.
The goal is to propose a site licensing mechanism that will resolve present legal uncertainties and enable a critical mass of previously inaccessible museum materials to be made widely available in digital form for educational use. The Getty Art History Information Program has provided funding for the planning phase and will commit some matching funds to the project.
Submitted by:Virginia M.G. Hall, Visual Resources Association
Christine Steiner, Smithsonian Institution
Christine Sundt, College Art Association
APPENDIX Electronic Image Archives: Work in Progress (request copy from csundt@oregon.uoregon.edu)
* "Dititizing Projects," by Micheline Nilsen
* "Electronic Resources for Art History" [Revised list], by Martin Raish
Virginia M.G. Hall
Art History Slide Collection
Johns Hopkins University
hall_vmg@jhunix.hcf.jhu.edu
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VISUAL RESOURCES ASSOCIATION INTELLECTUAL PROPERTY RIGHTS COMMITTEE REPORT ON NII MEETINGS HELD DECEMBER 2, 1994 AND JANUARY 4, 1995
The issue statements were presented at a joint meeting of the three subcommittees on December 2. The agenda for the day-long meeting was divided into Educational Issues, Digital Technology Issues, Library Issues, International Issues, Author/User Issues, and Information Policy Issues. Each group of authors was allotted a fifteen minute period for presentation and discussion of their issue statement. The Image Archives paper, presented under Library Issues, was well received. Most of the questions and comments were to clarify issues of current "analog" (i.e. not digital) practices in visual resource collections. As I reported earlier, there was a basic disagreement among the authors as to the interpretation of copy photography as a fair use practice.
Christine Steiner did state at the outset of the discussion that she felt that copy photography as practiced by visual resource collections was not a fair use and therefore presents serious problems when transferred to digital archives. A lively discussion followed which made clear the point that as current practices for slides are not defined, due to lack of case law and guidelines appropriate to images, these problems are compounded for electronic media. If nothing else, some attention has been focused on the issues of copyright and fair use that visual resource collection curators and librarians face on a daily basis. In informal discussions at these meetings, there has been a consensus that it would be unlikely that a court would overturn what amounts to forty or more years of practice by visual resource collections. That may be small consolation for those who are currently embarking on electronic projects with little in the way of appropriate guidelines on which to rely.
The agenda set for the January, February and April meetings was to develop "scenarios" for fair use for the various issues. The Image Archives scenarios will be presented at the April meeting. After some discussion, Chris Sundt and I have decided to submit scenarios of actual on-line image projects. I will be soliciting for specific projects and information via the VRA-Listserv soon. We would like to present some ideas about how various institutions are going about developing these projects and how the institutions are protecting themselves against possible copyright complaints. The scenarios will certainly present some controversy given the disagreement on current practices, but could prove to be extremely important in establishing guidelines for the future. I will also note that this tactic helps us to deal with the disagreement among the authors in our group.
Christine Steiner, as mentioned above, is adamant about her stand that any copy photography is a violation of fair use. My argument to her was that these scenarios would represent actual current practice and that the group at large could discuss whether these are fair use or not. She, in turn, may try to develop some theoretical models that might fit a definition of fair use. Barbara Hoffman, who is representing the CAA, will also be working on scenarios with us.
At the January 4 meeting the remaining issue statements were discussed. Then, the first of the scenarios were presented. These were: Works for the Visually Impaired, Transient Copying, Preservation, and Distance Learning. During the discussion of these scenarios, the bi-partisan nature of the assembly became very apparent. There are those who seek to protect the rights of users and those who seek to limit those rights and protect (extend?) the rights of commercial interests. I felt that the discussions became mired in legal nit-picking and that little progress was made towards developing guidelines useful to educators and librarians. I hope that the group will be able to find some ground for compromise.
Virginia M.G. Hall, Curator
Art History Slide Collection
Johns Hopkins University
hall_vmg@jhunix.hcf.jhu.edu
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The members of the committee include the VRA Executive Board, Bill Broom, Betsey Buckheit, Maryly Snow and Caron Carnahan. Macie Hall serves as Chair
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The major concern of the committee thus far has been to provide representation to the U.S. Department of Commerce, Patent and Trademark Office hearings and subcommittee meetings on fair use and the National Information Infrastructure. Sandra Walker attended the preliminary hearings in September, and I have attended the subsequent subcommittee meetings.
Initially, three groups were identified and separate meetings were scheduled. These groups are the Library subcommittee, the Elementary and High School subcommittee, and the University subcommittee. Commercial, government, nonprofit and educational organizations are represented on each subcommittee. The VRA is participating in both the Library and the University groups. The first meetings were held on October 21 and October 26. Christine Sundt, also a VRA member, attended the University meeting on October 26, representing the College Art Association. The agenda for these first meetings was to identify fair use issues. Volunteers then agreed to write statements on these issues representing current practices. Christine Sundt, Christine Steiner (Assistant Counsel to the Smithsonian) and I co-authored a statement on Image Archives.
The statement papers were presented at a joint meeting of the three subcommittees on December 2. (All subsequent meetings have been held jointly). The Image Archives paper was well received. Most of the questions and comments were to clarify issues of current practice in visual resource collections. It is clear that there are strong opinions on both sides as to the practice of copy photography as a fair use. A lively discussion followed the presentation of our statement which made clear the point that as current practices for slides are not defined, due to lack of case law and guidelines appropriate to images, these problems are compounded for electronic media.
At the January 4 and February 2 meetings "scenarios" for fair use for the various issues were presented. These included: Works for the Visually Impaired, Transient Copying, Preservation, Downloading for Personal Use, Distance Learning, Multimedia Works. Generally the debate seems to come down to disagreements between those representing groups with educational interests and those representing groups with commercial interests. I'm making a somewhat broad statement here, but for the most part, it is the commercial interests who are advocating licensing as a solution, and the educational groups who are leary of the limitations that licensing schemes may impose on fair use.
The next meeting will be April 5 and our group will be presenting scenarios for fair use in electronic media for image archives. This task will certainly present difficulties given the disagreement on current practices, but could prove to be extremely important in establishing guidelines for the future. Barbara Hoffmann representing the C.A.A., Chris Sundt, and I will be working together on the scenarios. I understand that Kathleen Cohen is also contributing to this effort. Several weeks ago Kathleen sent out a call solicting information on current practices. If you haven't responded and wish to do so, you may contact me at the e-mail address listed below. Specifically, we are seeking information on projects involving digitization of images for campus (or beyond) networks. What is your institution doing? What is the scope of your project? What problems have you encountered? What legal advice have you been given? We need the information soon and appreciate your input.
It has been an interesting experience representing the VRA at these meetings. Not being an attorney, or in on the political scene in copyright issues, I've wondered if our small constituency will make itself heard. Frequently, the debate seems to be reduced to legal nitpicking with the factions scrambling and emotions and tempers rising. I do feel though, that if nothing else, some attention has been focused on the issues of copyright and fair use that visual resource collections face on a daily basis. In informal discussions at these meetings on the issue of copy photography, there has been a consensus that it would be unlikely that any court would overturn what amounts to forty or more years of practice by visual resource collections. That may be small consolation for those who are currently embarking on electronic projects with little in the way of appropriate guidelines on which to rely.
I welcome your comments and suggestions on all of this.
Macie Hall
Virginia M.G. Hall, Curator
Johns Hopkins University
