January 2002 Draft.

It is proposed that, when approved by CAA’s Board of Directors, this document and guideline will be an amendment to CAA’s existing statement on Reproduction Rights in Scholarly and Educational Publishing which is on the CAA’s website.  The present document has been reviewed by the Committee on Intellectual Property and incorporates comments from other individuals including those during and after the 3 March 2001 CAA-NINCH Copyright Town Meeting.

 

             IMAGE  USE FEES  FOR  SCHOLARLY PUBLICATIONS

 

     For requests to use images for personal research most American museums, libraries, and archives do not require the  payment of fees to the holders of  the intellectual property rights in those images other than the cost of production.  When those same images are to be published, if  the organization providing the image knew more about how the image was to be used, in many instances, for non-profit, scholarly situations, they might waive or reduce charges for such use.  For example, an image used as an illustration in a scholarly article in a non-commercial journal with a distribution of under a few thousand copies usually would not be charged the same as a full color illustration for the cover of a glossy coffee table book with little text.  The following guideline, which should be adapted for specific purposes, can be used to give the image provider specific information on how the requester will use the image.  

 

     For organizations within the United States, the user may also claim the right to use the image based on the fair use principle embodied in Section 107 of the U. S. Copyright Act.  A statement of the elements of  fair use is included below to help one consider this option. Sufficient detailed information allows the image provider to make a fair judgement about fees to be charged, if any.

 

     This guideline may be useful when writing to museums, etc. in the United States, but copyright laws in most other countries provide much more limited user access provisions.  If you decide to make use of the following document to support a university or college related project,  it would be useful to submit the letter you plan to send out to the school’s legal office for additional suggestions and vetting.

 

     Ideally, when a scholar contracts with a publisher or distributer to prepare an article,  book, etc., the acquisition of intellectual property rights would be  the responsibility of the publisher or distributer.  As this frequently is not the case, providing the following information to the rights holding individual or institution will allow  for the correct or even no fee to be charged.  Please note, commercial rights holding organizations and, more frequently now, public organizations will provide an image for research with the contractual understanding that it will not be published without their further permission and possibly the payment of a fee.  Always confirm with the source of the image you plan to use that they own the rights for the object and the image.  Permission may have to come from multiple individuals or organizations.   If the user has a satisfactory image unencumbered by contractual limits to access, fair use provisions of the present U. S. copyright laws may allow for certain types of use without the need to request permission or payment of a fee.   Please note, charges for production and delivery of  the photograph/image itself are separate from this discussion. 


January 2002 draft BEFORE YOU WRITE TO A RIGHTS HOLDER

                                 HAVE THIS INFORMATION AVAILABLE

 

     To acquire permission to publish/distribute an image from a museum, library, archive, etc., it should speed up the process and provide for the basis of an accurate charge, if an individual would provide to the rights holder as much of the following information as possible:

 

*  object and rights identification - name of maker/creator, title, accession or collection number, donor name, source where image was seen, a photocopy of the image (if available), other rights holders if they are needed.

 

*   user information - contact name, organization,  street and electronic addresses, telephone and fax numbers.  Commercial status of the product and firm which will produce/distribute the product - commercial, non-profit/non-commercial entity, or an individual. 

 

* proposed use - be as specific as possible -  describe the publication/product and means of production/distribution.  Will it be a book, journal article, Intranet or Internet display, commercial television broadcast, feature film, etc.?  Will delivery to the end user be via

commercial means (sold to the public for a profit) or non-commercial means (given away for free or for a nominal charge)?  How many copies will be created?  What will be the cost of product/publication to the purchaser?  For film or video, how long will the image be presented and  for how long a period will the product be distributed?  For Internet display, what portion of a screen size and resolution will the image occupy and  for what period of time will it be distributed or displayed?   Into how many languages or countries will the product be translated or  distributed(e.g. English language and world-wide rights or English and Spanish language rights for US distribution)?  Will the image be for non-editorial (an image with little more than an identifying caption) or editorial use ( the text informs one about the image)?  A publication with more limited audience and increased ratio of  text to images is usually charged a lower fee.

 

     If  the image is from a source within the United States and  you think the proposed image use substantially meets the elements of  fair use as provided for by U. S. Copyright law, state why and ask for the fee to be waived.  The elements are:

 

* purpose and character of the use (use that is more of a non-profit, educational nature is more fair than commercial projects),

 

* nature of the copyrighted work (fiction has more protection than nonfiction, except where first publication of original work is concerned),

 

* amount (how much of a work or body of work is copied - less being more fair use [as a detail rarely captures the portrayal of a painting or print this means a very limited number of an artist’s works might be presented if in small format]), and

 

*effect on the market for the original (copying out of print or low resolution images are more fair use than creating an image which actively competes with the original).


January 2002 draft

               IMAGE  PUBLICATION  USE  EVALUATION GUIDELINE

 (This is a guideline to be adapted for individual use when requesting the use of images from a holder of rights for those images.  The use granted may be based on contract or copyright law depending on what rights the owner possesses and the access being granted.   A review by an organization’s legal office is recommended.)

 

To: (Rights holder)

 

     I wish to use the image of the following object(s) for the following purpose (not for personal research).  Please advise me if the fee may be waived for fair use purposes, or if not, about the  appropriate fee charged  for such use.

  

Object and Rights Identification

 

Name of maker/creator:

Object Title:

Accession, catalog, or collection number;

Donor name:

The source where image was seen:

(I have/have not included a photocopy of the image.)

 

Image rights provider:  Please provide a credit line for the image.   If you are not the rights holder for the object, please provide me with the name and address of the rights holder.

 

User Information

Contact name:

Organization name:

Address: 

Telephone:                               Fax:                                     E-mail:

 

Producer/Distributor Information (if different)

 

Contact name:

Organization name:

Address: 

Telephone:                               Fax:                                     E-mail:

 

The producer/distributor is

 

___An Individual    ___An Organization                 

___Commercial       ___ Non-commercial

___Academic          ___ General Audience Trade Publisher

 

 


January 2002 draft                                                                                                            2

 

Proposed Use

The image will be used for:

 

_____ a non-editorial use (on cover of publication, CD/video, etc. or with little more than an identifying caption)

_____ an editorial use (the text discusses the image).

 

The publication/product will be:

 

____ a book

____ a  journal article

____ pages in length, _____ number of copies or size edition.

 

_____ an Internet display

_____ % of the screen for Internet display

_____ period of time for display

_____  resolution

 

_____ a commercial television broadcast

_____ time on screen

_____ number of times to be shown or distribution period

 

_____ feature film

_____ time on screen

_____ number of times to be shown or distribution period

 

_____ video

_____ time on screen

_____ number of copies to be produced

_____ years of planned distribution

 

The means of delivery to end user will be via:

 

____ commercial means [sold to the public for a profit]

____ non-commercial [given away for free or nominal charge]

 

For all uses, list countries and/or languages for distribution or worldwide (e.g., English language and world-wide rights or English and Spanish language for US distribution):

 

 

 

 

 


 

January 2002 Draft                                                                                                                        3

Fair Use Evaluation

 

(If  you think your proposed use of an image meets fair use criteria, inform the rights holder.  A thorough  evaluation is the basis of a solid claim.)

 

The following evaluation for determining fair use as defined by U. S. copyright statue has been applied to my request for permission to publish the above images.  Based on the facts provided, I request that all usage fees be waived because the proposed use substantially meets the criteria for fair use.

 

A. Purpose and character of the use (use is more nonprofit educational than commercial):

___Product  using image is non-profit or sold for a nominal fee covering costs. Provide specifics.

___Product using image is educational in purpose; text informs reader, not just for identification.  Provide specifics.

___Product using image is commentary or criticism.  Provide specifics.

 

B.  Nature of the copyrighted work (use is more non-fiction than has fiction, out of print and not the first publication of an original work):

___Work to be used is primarily non-fiction.  Provide specifics.

___Work to be used is not its first publication.  Provide specifics.

___Work to be used is out of print. Provide specifics.

 

C.  Amount (relatively little of the work is copied - a detail or only a very limited number of an artist’s works in small format will be reproduced) :

___Works  depicted are a limited quantity of the artist’s oeuvre or the scope of a large work..         Provide specifics.

___Work depicted is considerably reduced in size from the original. Provide specifics.

___Work depicted is of reduced definition that original.  Provide specifics.

 

D.  Effect on the market for the original (original image is out of print or proposed product will show low resolution images, not of a quality to be confused with the original):

___Work created will not be confused with original.  Provide specifics.

___Work created will be part of an educational, not commercial activity.  Provide specifics.

___Work created will not be sold as an alternative to the original.  Provide specifics.