Not long ago I was chairing the Intellectual Property Committee of the College Art Association – a professional society servicing the needs of scholars, teachers and artists. At a CAA conference, a young scholar approached me with a problem. It was a big problem, and to her, very personal – as she spoke, I could see that she was actually fighting tears. She had just received her first position as a teacher of art history. It was just part time – only one course – in a small school; but of course it was very important to her. She was to teach Medieval Art, but when she began to assemble her materials, she discovered that the school’s slide collection didn’t cover that area well enough, so she asked about having slides made from book illustrations. That’s the standard time-honored procedure – especially useful in emergencies, but used just about everywhere.

She was told that for copyright reasons the school no longer was allowed to copy book-illustration; further, she learned they had no money for commercial image acquisition, and that if she wanted to teach with slides, she had better make them herself – paying the cost out of her own pocket. This was impossible, of course. You can’t prepare a course, teach a course and make 1500 slides all in one semester. Even if you have the money, you can’t build a course out of commercial offerings. I wish I knew how this story ended, but I can very well guess that it didn’t end well for this young teacher whom I couldn’t help.

Last year I received word that a well-known college of decent repute had ordered its art history department to stop using visual materials for which classroom rights had not been secured. If your specialty is in publishing, cinema, the music industry, or just about any for-profit endeavor, such an order probably won’t sound strange at all. These expenses are built into the price of the final product. But in academia such news would strike at the very heart of your enterprise – it could even kill it.

How does securing rights undermine the educational mission? Of course the money is a big problem – always is. So much of it would be needed for rights and administration that there is palpable fear that the dean’s or provost’s office might decide that art history just isn’t as important as they once thought. Other humanistic studies are cheaper to teach. Deans have lots of balancing to do these days. The popular view of Art History easily obscures the real mission of the discipline. (How many here have seen "Mona Lisa Smiles?")

Back to the "problem." To begin, very few rights-holders distinguish between educational and commercial usages. To them, education is just another commercial enterprise. A use is a use, they’d argue. To some educators, that’s most of the problem; but to me, that’s only the start of it.

They say one should expect the process of securing rights for a single course to take up to three years, and that some works will just not be available – ever – either because the rights-holders refuse to grant rights – or because they simply charge too much money – like the one vendor who charges $100 per image for a one-year educational license, even when you need the image for only ten minutes –, or because the request is so trivial to them, that they don’t even bother to respond – or because you just can’t find the right rights holder.

How does one teach without the proper resources? What do you do if, say, the primary resource for images of Chartres Cathedral never responded to your request? Do you omit Picasso from the syllabus if the heirs want too much money? How do you teach a course on a current topic? Three years from now – by the time the rights have cleared – interest will have ebbed. Teachers compete for students, you know. These days they must offer some degree of currency and relevance in the curriculum. How do you plan to hire temporary faculty? By telling them to start preparing for a course to be given three years hence? Must they be paid for such advance preparations? In this fluid job market, is the selected teacher supposed to honor commitments made so far into the future? Art history courses are not like algebra courses; teachers often don’t know what they plan to show until a day or two before class – and every time they teach the same course it comes out differently.

Is the university like a corporation? To meet departmental budget goals must they cheapen their product and extend their reach by dumbing down their offerings? Do we accept the proposition that art education must succumb to market conditions, or is there something transcendent in the nature of a humanistic education that excuses teachers and educational institutions from having to choose images based upon the unpredictable costs of using them?

Oh, and I forgot to mention that under the new guidelines, the department must renew its request for rights every time the image is to be used for a new course or for a repeat course – just like a publisher must renew image rights for new editions and new titles.

There is no model to teach like this; there is no model, and no sense. I haven’t mentioned the name of this school. Indeed, I’ve been sworn to confidentiality; the department is just too embarrassed to let people know the nature of their forced enterprise. But imagine the worst. At this rate, a few years hence, counsel may be requiring many hundreds of departments to send similar requests. Hundreds of thousands – millions of requests – many the same, many unique, flying this way and that through the ether, clogging inboxes, overwhelming rights holders who can answer none of them. SPAM to some. Without fair use, this is the breeding ground for gangs of educational outlaws ducking the radar of whoever watches out for these things. Unfriendly enemies of fair use – who see "fair use" as nothing else but "market failure" – have been known to stigmatize believers in section 107 as "terrorists." To paraphrase a well-known observation, "If fair use didn’t exist, you’d have to invent it."

Even if the blizzard of rights management for educational use of copyrighted works could be tamed, making it easy doesn’t necessarily make it right.

Luckily, this infection has not yet spread widely. Indeed, there are some schools whose attorneys will not allow themselves to be intimidated by the weakness in the fair use code and will, if pressed, come to the defense of their institution when, and if, an infringement suit appears. Some schools encourage the application of fair use. Moreover, there are institutions, museums especially, that hold rights to images who believe it is their own mission to see that their works become better known. They encourage just those procedures that have been banned by the above attorneys. They encourage "copystand photography" of books with illustrations of their holdings, they gladly supply study images, and even, on their own public websites, under the right of fair use, publish works owned by other institutions.

Of course, none of these feared fair use challenges have come. Why? One reason is because many rights-holders never really targeted education as a source of income; they don’t yet perceive a loss, and they have trepidations about marketing to impoverished agencies. They suspect there is a market there somewhere, but don’t quite know how to make it – especially since a small army of vendors manage to sell images (with rights) for unusually low prices.

Another reason is because it is much more useful to permit users to live in a state of fear and apprehension, wary of jeopardy, willing to self-discipline themselves into compliance. And, of course, to accomplish this, it is best to be quiet, since any effort to establish clear guidelines though the courts easily might backfire. After all, Lady Bridgeman never expected to lose control of her stable of public domain offerings. Then again, there is also the chance that a judge will take a hard look at the facts, read the fair use statute, and decide a case not on what the law says literally, but on the basis of what it was intended to accomplish – to promote learning, commentary, free speech, and to serve the public good and (trumpets please) promote the American way. Gratefully, judges may consider more than just the four opaque factors that qualify the statute’s statement of mission. It isn’t hard to conclude that gnawing away at the educational corpus is counter-productive to the national interest. And it isn’t hard to imagine, though it sounds counter-intuitive, that fair use might actually be beneficial to rights-holders.

Indeed, in those days, the institutions and individuals who held the rights to works of art or their images would often well understand that the value and significance of their holdings in some crucial way depended directly or indirectly upon the disciplines and practitioners of art history, museology, criticism, connoisseurship and curatorship. It was understood that these scholars, teachers and curators were fundamental to sustaining and enhancing the market for art, were improving the public image of collectors and collecting or were bringing prowess to museums by exposing the general public, students, other scholars, and would-be patrons and collectors to new works, to better studied works and to more securely attributed works. The academic scholar (frequently) never received financial gain for the consequences of his work – teaching and publishing were his professional obligations and his delight. Today, still, no payment is made to authors of scholarly articles, and book royalties, more often than not, are merely symbolic.

The owners as owners knew they owed a moral debt to the discipline. In those days, when I would write to a museum, requesting a photo for study or for teaching purposes, more often than not, a few days later my request would be fulfilled – not with a skimpy postcard image but with a beautiful crisp 8x10" contact print. And the price? – Often no charge for that. Publication royalties for images used in scholarly journals were routinely waived, and still are – but only rarely now.

Most importantly, then as now, art education nourished a culture of intellectuals, fed an eager intelligencia among non-professionals who appreciated and supported the arts, and in its wake created the abounding commercial demand we see today for art books, for blockbuster exhibits and their expensive catalogues, even for art toys and art kitsch. Willfully or not, art historians have participated as catalyst to the explosion in the general interest in art and in the creation of the art-licensing bonanza that so dominates museum store catalogues and other venues. And what is the pay-back? I don’t hear the licensors saying "thank you." Instead, all I hear are erstwhile Audreys singing, "pay me, pay me, pay me some more."

What happened in the last 40 years to cause this sea change? Today, does scholarship receive such little respect that people believe that it no longer serves society’s interests? Have we lost the distinction between learning and earning? Is the disdain for scholarship consequential to the strong dose of anti-intellectualism through which our country is now passing? Do the works of art historians and teachers no longer benefit object holders? Why do copyright holders or their agents seek every nook and cranny in search for royalties? Are they not aware that culture is a community gesture, that ownership bestows obligations, that ownership implies mutuality – if you own it, you soon discover that it owns you. Ownership bestows an obligation to lend support to those who build the fame of their wares, and to those who may ultimately be responsible for their fortune. In the face of this, lately I’ve heard art historians wonder if there was a way to make people pay when they use the ideas they publish.

Has no one in this industry ever heard of long-term planning, of building good will, of (heaven forfend) acting on the knowledge that the values built into their holdings are not always to be measured in dollars? That the works they own, that the qualities inherent in the works they own owe debt to generations of artists, critics, historians and art workers preceding them? Have the accountants and the MBAs infected our moral core, forcing us to measure all worth in terms of potential economic exploitation? Are they immune to tradition and longstanding values? I detect an overwhelming hubris and chutzpah in all this. Is there no shame?

It is fair enough to request royalties for use of copyrighted works in a for-profit enterprise. That’s what copyright is for. But it is a sick enterprise, indeed, to take advantage of an error or weakness in the copyright code – the error that makes proving fair use an affirmative defense – to squeeze out the last available centavo from bona fide but frightened fair users.

In the old days you knew you couldn’t get much out of your horse unless you fed it and treated it with respect.

The moral: If copyright owners want users to respect the benefits that the code has given to them, they might start by honoring what our system has reserved for users. Federal copyright was created to benefit the country by promoting invention and creation. The plan was to balance the interests of the public and creators. Today we are out of balance. There are two areas in need of revision. Giving fair use some bite would be a good start. Restoring the public domain to its rightful place is no less important.

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Already scholars are pressed hard in their academic publishing ventures. Many of you already know that scholars whose works are published by academic presses are responsible not only for the permissions and royalties associated with their images, but also must absorb the cost of errors. One scholar I know of recently was asked to pay a rights holder over four thousand dollars for accidentally (or negligently) infringing a documentary photograph of a theatrical work. If an assistant professor earns sixty thousand dollars per year, this fee is just shy of a month’s wages. Proportionally, this is more punitive than fines levied against major air polluters.

Obvious questions: Why doesn’t the academic press pay these royalties themselves? Okay, the question is rhetorical. We know about the strained economics of the academic press today. We understand the pressures. Excusing the above, then why do the presses force the complex task of securing rights upon a scholar, who at best may be a neophyte rights worker? Why put him in jeopardy – into harm’s way? Why sully the excitement of publishing? If this is something one must endure, why not form a consortium for clearing academic rights, one employing experts who know the ropes? Better yet, how about instituting a compulsory license for non-profit use? But the really big question is this? Why isn’t such scholarly publishing considered fair use by default? One academic press says flatly: illustrations are not fair use. As far as I can see, when they are the subject of a book about art, they do comply with the stated purpose of the law. Here it is:

Okay, the Devil is in the details; but the answers are simple enough: Firstly, while fair use doesn’t categorically exclude art, its language wasn’t really crafted to apply to works of art – it’s a tough squeeze, at best. The fair use statute unfairly handicaps art. Of course, there is potential economic value in charging academics for rights. And that, say some, would be the economic consequence that would kill a fair use defense. It is a rare publisher who relies on fair use for images anyway. Most are too frightened or intimidated.

Once upon a time publishers were a feisty lot. What happened? Corporate style control happened. And now there is trouble. For instance:

Heirs of one well-known contemporary artist, refused to grant a scholar permission to publish images in her monograph on the movement in which he participated. The publisher was a respected academic press. These refused works are commonly published elsewhere. What happened here? Well, in previous publications this author criticized these same works. The heirs relied on their power as copyright owners to limit the author’s right of free speech. That’s a fair use tip-off, if ever I heard one. But where was the academic press at this time of need? "We can’t afford losing a costly infringement suit." They may be saving a sou, but in the process they are selling their soul. Like newspapers, academic presses are not trade presses, they have a unique responsibility to protect free speech and to support fair use, to endorse and fight for academic values. Perhaps I’m too harsh. In real life people do accommodate themselves to disappointments and sweep bad decisions under the rug. We suffer the consequence, however, and are beginning to grow cynical and distrustful of what is presented as verifiable truth.

I asked another colleague, an author who frequently writes on modern art, what she does if the artist or his heirs disagree with something she is about to publish. Her answer: "Oh, I just change it to what they want." Today, perhaps that’s what we should call "smart."

We know that the scholar must publish to advance her career. In need of support, often she is left to her own devices. But the really really big question asks how long the scholarly community can sustain itself in face of these onslaughts – as we say: squeezed between a rock and a hard place? How many ethical compromises and how many taxes on their meager incomes must scholars endure before they decide it is just not worth the trouble? Or, how much longer will it take before scholars get wise, and realize that to survive they must play the same dollar game as every one else. If their ideas and words are influential and powerful, how best might they serve their own interests and put them to good economic use?

Let’s conclude with this fictional sample scenario – in the real world called a "pitch:"