“Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report,” a new College Art Association-published semi-book by Patricia Aufderheide, Peter Jaszi, Bryan Bello and Tijana Milosevic, is a much zippier read than its 19-word title would suggest. The 87-page semi-book is a confrontational and at times page-turner-level documentation of how American art professionals massively under-use fair-use law. Anyone who works with images of art should read it.
Yesterday Jillian Steinhauer published a nice summary of the report. Here are some passages that struck me, with some occasional commentary. (The report addresses more than art museum-related application of fair-use, but for the purpose of this post, that’s where I’ll place my focus.)
Institutional willingness to invoke fair-use
- “Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.”
- “Fair use is accessible, favored in the courts, appropriate for many uses in the field, and yet vastly underused, with serious consequences for the future of the field.”
- “There are few copyright decisions relating directly to the visual arts practices focused on in this report, and those that do have little predictive value, with one exception: Judge Kaplan’s decision in Bridgeman Art Library v. Corel Corp., 25 F. Supp. 2d 421 (S.D. N.Y. 1998). This judgment, resolving a controversy between two private, for-profit entities with significant stakes in the outcome, has matured over fifteen years into a de facto industry standard, despite the fact that it has never been followed (or perhaps because it has never been significantly challenged) in any other court. Bridgeman, which states that routine photographic documentation of paintings is insufficiently “original” to qualify for copyright protection, has been widely used as precedent to enable the wider circulation of images representing two-dimensional objects in museum and other institutional collections. Many survey respondents and interviewees were aware of this decision, although their understanding of the decision was not always accurate or assured. Other copyright issues affecting visual arts museum practice appear to have gone unlitigated, as discussed below. This may be because, unlike in Bridgeman, the parties in conflict have not deemed the financial stakes around those issues to be great enough to generate serious legal disputes. It may also reflect the fact that conflicts about these issues tend to be resolved through settlements or compromises that leave no public record, but that may nevertheless influence future institutional practice.”
- “[R]esearcher Diane Zorich argued that the process of finding illustrations for academic research was made “more onerous by the conservative, risk-averse nature of the discipline, which shies away from invoking fair use even in instances where it is clearly applicable. As a result, scholars spend huge amounts of time and large sums of (often their own) money licensing images for their publications.”
These four quotes point to the importance of museum directors and other institutional leaders making fair-use application an institutional priority. Only then will staff not at the top of the organizational pyramid feel free to step outside what they believe to be the safest, keep-my-head-down applications. Museum and other stuff should be evaluated by their superiors on their willingness to apply fair-use law to image use, not on their ability to not create image-related “problems.”
ARS and VAGA
- “Organizations that facilitate copyright permissions—such as artists’ estates, ARS, and VAGA—are sometimes seen as formidable and even intimidating forces. Many interviewees believed that ARS and VAGA sometimes demanded terms that the rights holders they represented would not. (Respondents from those agencies noted that their job is to represent the artist’s interests and confirmed that they sometimes have conversations with artists to remind them of the possibility of securing licensing revenues.) Some interviewees complained that ARS offered poorer quality images in connection with routine requests, with the option of paying higher fees for better quality. One museum professional expressed frustration at being required to negotiate with ARS for permission to reproduce a work of art that the institution believed was in the public domain (which ARS disputed) and that was in its own collection. In general, interviewees found that ARS and VAGA strongly reinforce a permissions culture.”
- “ARS and VAGA, both entities created to facilitate permissions, have become major gatekeepers, with a default position that all use requires a license.”
- “Exaggerated risk assessment was revealed to be a major obstacle to employing or even considering the employment of fair use. Assessments of risk typically were either grounded in misinformation or altogether ungrounded.”
Time and time again museum professionals have told me that the fear of being billed or sued by ARS and VAGA is the major reason that museums and other institutions are unwilling to assert fair-use. Museum staff are puzzled why their institutions — hello directors! — are seemingly unwilling to stand up to what they consider to be near-predatory practices.
The unfounded fear of legal action
- One museum professional, who is also a scholar, noted the institution’s rigid and extreme permissions policies: ‘I know that we are too risk-averse, because no one will probably sue us, but. . . .’ Said another museum professional, ‘I don’t want to be the test case. I don’t want [my institution] to be sued.’”
- “Besides the frustrations of uncertainty and existing practice, respondents also complained about rights holders contacting them with financial demands. Some had been contacted by ARS or VAGA, after which they typically reported to have negotiated or paid the asking price… In any case, the endemic concern about legal risk is radically out of step with any actual experience of direct challenges, most of which appears, in any event, to be automatically generated or sent by entities with a default position of demanding permissions in all cases. The lived experience of legal action or anything close to it appears to be vanishingly small. By contrast, the belief that copyright is fraught with threatening situations appears pervasive.”
So what next? As the report suggests, the art museum sector’s leadership organization, the Association of Art Museum Directors, has not usefully led on this issue. Some institutions, such as the Walker Art Center, which digitally publishes images of objects in its collection at over 1,000 pixels wide, about twice the width that museums such as the Museum of Modern Art are willing to digitally publish, have pushed on their own. (Conversely, when the Hirshhorn Museum and Sculpture Garden published its terrible new website, it shrank collection images down to a little more than 300px wide, a significant regression.) Good for the Walker. More museums should copy what it does on collection objects.
Overall, the CAA report notes that the most significant roadblocks to the broader use of fair-use law are not legal issues, but leadership. The ball is in your court, museum directors.