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A Case Against Editor's note: Compare the following with another anonymous submission on this topic. As curator of the visual resources collections of a small, independent college of art and design, I rely extensively on Fair Use and a strong Public Domain to support the work of our faculty and students. The creation of new work in the visual arts depends not only on understanding historic precedent, but often on being able to apply precedent elements of style, composition, and motif in new contexts and media. Postponing the entry into the public domain of important works from the 1920s and 1930s representing styles and movements such as Dada, Surrealism, Constructivism, de Stijl, and Art Deco does nothing to protect their often long-deceased creators; rather, copyright extension acts as restraints on artists and designers working today, frustrating the intent of the Constitution that establishes copyright to promote the progress of knowledge and creativity. The Slide Collection of [the art and design school for which I work] is comprised of approximately 140,000 analog slides. Over the past decade, our accessions rate has fluctuated from a high of 5,000 to a low of 1800 per annum. During the same period, my acquisitions budget has ranged from a high of $4000 to a nadir of $1350, and in recent years has averaged $1800. In effect, I am expected to develop a collection at a cost of less than a dollar per slide (considering material costs only). In consequence, around 95% of our slide acquisitions are generated via copy stand photography. The remaining 5% comes from highly selective purchases, duplication (with permission) of artists' portfolio slides, donations, and location photography (most of which I do personally, on my own time and initiative). The image needs of an art and design school are quite different from those typical of the art history program in a large research university, though there is of course a fair amount of overlap in coverage. Faculty in our studio programs need slides of media such as drawing, printmaking, photography, and the decorative arts -- areas not well represented in the offerings of major vendors and licensing programs, which tend to focus on the "big three" categories of architecture, sculpture, and painting. Moreover, our faculty want particularly to expose young artists and designers-in-the-making to very contemporary, "cutting edge" works; this sort of content is particularly elusive in vendor offerings. Then there are important "popular/vernacular culture" curricular areas such as illustration, commercial graphic design, advertising design, packaging design, jewelry, furniture design, artists' books, comic books and graphic novels that are hardly addressed at all in vendors' slides or digital image licensing schemes. These are just some of the reasons I rely on copy stand photography for the bulk of my collection development. I know I'm not alone: I have been a visual resources librarian for over twenty-five years, and have been in charge of image collections ranging from 20,000 items to over 140,000 items. During this time, I have also had opportunity -- as informal visitor, as professional colleague, and as consultant -- to examine over 100 academic slide collections. An overwhelming majority have used (and continue to use) copy stand photography -- and now scanning -- as a major source of images for collection development. In some cases this has been primarily a matter of convenience or economy; perhaps a more compelling reason has been that a high proportion of images in a typical collection were not available for purchase in slide form from any source -- commercial vendors, museums, galleries, etc. I can think of a number of valid reasons why the use of copy stand photography and/or local scanning will probably continue to be used as a major (and often primary) means of collection development: Cost is an obvious answer for many smaller schools (such as mine), but this is by no means the only (or even the chief) reason; frequently, specific images instructors need are not available for purchase from any commercial vendor whatsoever (in regard to my own institution's collection of some 140,000 analog slides, well over half would not have been available at all for my borrowers if I hadn't obtained them via copy stand photography); convenience is certainly an issue, as is timeliness of response to requests (with many schools relying increasingly on adjunct faculty hired on a semester-by-semester basis, systematic accessioning months in advance of a course's being taught is no longer something we can depend on); focused development is yet another good reason: knowing exactly what you're getting. Instead of buying a large set, often sight unseen, hoping thereby to get the few images one actually wants, one can simply shoot the exact images needed from a published source -- in an era of shrinking budgets, why should I have to buy a set of 36 views of the "Wrapped Reichstag" project just to get the 2 or 3 overall views and a couple of details my instructor actually needs? By vigorously exploiting our public domain, fair use, and Bridgeman rights in obtaining as many images as possible through copy stand photography, we also retain far more control over our future image use. When, on the other hand, we obtain the bulk of our images through purchasing or licensing agreements, we give image providers (or in a growing number of cases their quasi-commercial distributors) authority over our creative use of content in an environment in which rapid evolution is the only constant. In signing licensing agreements, in many cases we are taking our image usage out of the realm of copyright law and placing it into the realm of commercial contractual law, which is not obligated to recognize either our Fair Use rights or the existence of the Public Domain. (That's how the Bettman Archive operated profitably for years: it knew, and acknowledged if pressed, that much of the visual material it provided was indeed within the Public Domain; anyone who wished to take the trouble could have obtained the same material through alternative, widely available means; however, once a licensee signed a commercial contract with the Bettman, he surrendered thereby the freedom to use that material in any way other than the specific one licensed; the licensee, in effect, voluntarily surrendered usage rights that he could have maintained had he obtained the same content by another means; to most specific-application users, it was worth the loss of potential freedom in order to save the search time . . .). Several years ago at [my school], we had a conscientious instructor who went through the process of obtaining documented proof of permission to use one particular image before posting it on his website. Doing so required four hours of staff time, three separate letters, and six months of waiting for a reluctant response from a foreign museum (which said, in effect, that it didn't want to give permission but wouldn't do anything to prevent the requested use). Multiply this sort of lukewarm cooperation by thousands of images and it's clear that the process of obtaining permission urged by counsel at some institutions is completely beyond reality for a substantive collection. Just for the sake of argument, I've analyzed [our] typical year's accessions (2400 slides) into what I think would be reasonable categories, broken down by percentages and numbers in our collection:
I freely concede that around 15-20% of my copy stand photography may potentially involve copyright infringement, as it could reasonable be argued by some that equivalent reproductions are probably available at reasonable prices if I were to seek them out. However, the question as to whether these can truly be considered "readily available" really depends on one's point of view: as there is no equivalent to Books in Print or Amazon.com for slides and digital images, locating a legitimate source for each image could conceivably require searching through dozens of providers' catalogs or sites. For [my school] (and I'll guess for many smaller schools), there's another bottom line issue here as well: cost. With a typical purchased slide or licensed image costing upwards of $5 or so these days, my budget would have to grow to two or three times its present size to maintain an equivalent growth rate were I to abandon use of copy stand photography. This isn't going to happen; nor will I reduce my collection development to a third of its already minimal current rate. Guess I'll just have to continue to operate in that big gray area . . . Return to Robert's
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