| From Visual
Resources: An International Journal of Documentation,
Vol. XII, nos. 3-4. (1997) Gordon and Breach Publishers. pp. 233 ff. Ó 1997 by Gordon and Breach. (http://www.gbhap.com/) [2002: succeeded by Taylor & Francis Group] ISSN: 0197-3762, ISBN: 90-5699-553-7 For complete table of contents vrcfu2.htm and, for information on how to order: (http://www.tandf.co.uk/journals/customer.html) Copyright
& Fair Use: Editor's Introduction, Summary and Analysis.[1] By
Introduction to the articles Top | Table | Next | Notes | Home ¶1 It will come as no surprise to frequent readers of Visual Resources or to anyone whose occupation it is to tend to the visual information needs of academia and elsewhere, that a transformation is in progress. What had once been a profession in which photographic technology, equipment assessment, accessibility to sources, meeting production schedules and working and developing filing and retrieval systems occupied the greater part of one's time, in recent years has become a profession in which the legal process by which its goals are achieved is assuming a vastly disproportionate claim to the time and attention of image workers. No single topic exemplifies this transformation more acutely than that which speaks of the rights pursuant to using and obtaining images—copyright and intellectual property. The papers in this volume speak to those issues surrounding the processes of obtaining and using images—what rights and freedoms custodians of visual resources collections may claim for themselves; what obligations they owe to the owners of copyright and their representatives; what procedures they may invoke to lay claim to their rights and to oblige the rights of others; how best to mine and secure the promises of electronic media and distribution systems; and which systems, protocols, license arrangements, exemptions and organizational structures are best to meet the needs of those in this profession. ¶2 While image curators and librarians must still concern themselves with the traditional array of slide-room obligations, today they must pay attention to contracts, item licenses, site licenses, rights and reproductions, permissions, network distribution, multi-media issues, distance learning, copyright agents, researchers and scholars, intellectual property issues and university legal counsels, meetings, symposia, legislation and papers such as those offered here. ¶3 The articles presented in this issue of Visual Resources are about the laws controlling how images are provided and about the rights and obligations image users and image owners expect to be respected. Obviously there are disagreements in this area, for, if there were none, there would be no articles to print on the topic; indeed, every article presented here supports one or another view on how our image distribution system should be constructed. Any outsider without special knowledge of the history and traditions of visual resources curation may posit that the lines of discrepancy and conflict of necessity must be drawn between image providers and image users, that the providers must wish to protect their investments and maximize their profits and that the users must want to continue their operations without undue hindrance and with minimum tax on their budget. But while these positions are generally true (as they must be), an analysis of the stands actually taken by interested parties reveals a considerably more complexly faceted landscape of preferences. The truth of the matter is that, comparatively speaking, the community of image resource professionals in academia is relatively small, and the individuals who inhabit this discipline, in its various manifestations, be they vendor, scholar, information specialist, curator or technician, for the most part have been drawn into this world by a common belief in the value of the humanities in general and most specifically in the worth of the visual humanities. Indeed, looking back, it has never been quite clear who among this group will end up as vendors and who will find themselves in the business of image acquisition, who will become scholars or authors, and who will represent the interests of museums or artists. It is not surprising, therefore, that there is considerable role switching and role overlap among the professionals in this industry. You might say that almost everyone has a conflict of interest, or better said, a conflict of responsibilities. ¶4 Is the above a naïve assessment of a factionalized situation? At times this commentator might agree and say it is; but, on some deeper level one senses that there is an innate truth to these characterizations. ¶5 Although the essays in this edition have been broadly divided into those by image suppliers and image users, what will become immediately apparent to anyone who reads through the lot of them is the fact that the ultimate goals of each group sufficiently overlap so to expose the decent respect that any one side has for the needs and problems of the others. Withal, there is no requirement that the principle players bow to the altar of altruistic service for the good of the discipline—though some do. Readers should not be surprised therefore to discover how vendors and image suppliers feel that their strategies and protocols are well suited to supply useful images to their customers, while at the same time respecting their needs and customs, or how they wish to protect the interests of their sources while characteristically taking positions that a more cupidinous industry might find self-destructive or even foolhardy. Correspondingly, essays by image users often show concern and respect for the intellectual property rights and markets of image owners and their representatives, for the rights of artists and other creators, while they fight to insure the continuation of their traditional fair use privileges within the coming National Information Infrastructure (NII) and elsewhere. The above notwithstanding, the industry does find home for extremists on both sides. ¶6 The subtext that haunts the majority of the articles printed here is the great need to resolve the perennially nagging questions: What rights are right, what obligations are necessary, what compromises are realistic, and what kinds of procedures may be used to facilitate exercising these rights and meeting these obligations. If there is a note of desperation that reverberates through these articles, it is one sympathetic to the tone of frustration born of confusion, specifically when it derives from a perceived lack of clarity and applicability of the laws, and from the lack of any universally respected institution specifically established to orchestrate and administer the protocols and procedures needed to get the work done. When one encounters extreme positions, be assured that they have been formed in an atmosphere of fear in which the unknown cataclysm brought on by a powerfully attractive but potentially untrustworthy technology—digitization and world-wide network transmission—is known to be just around the corner. Image vendors during pre-digital days could always absorb a certain level of copyright infringement, just as shop owners knew that they had to put up with a fixed amount of shoplifting. When images are transmitted and stored digitally, however, no one can blame image rights owners for their fear that a gang of image-looters will break in and carry away the store. ¶7 Copyright and fair use may be issues now, but in the future, when the dust settles, when the players are more comfortable with the benefits and safeguards that technology will undoubtedly have to offer, and when, with any luck, the administration of copyright will have become just another routine task, no one will think twice about it, no one will bother writing about it, and everyone will be able to pack up their law books and get back to the work they prefer. ¶8 The articles contained in this issue of Visual Resources are written by people who have been brought together from a variety of disciplines involved with the image resource industry. They include an electronic image vendor and licensing agent, an independent museum informatics consultant and editor of an important journal in electronic records management for cultural institutions, an imaging project leader and arts information specialist, museum and academic visual resources curators from around the world, a museum publications director, a museum administrator and specialist in museum law, an elementary school teacher, a university humanities professor, museum policy specialists and an arts law attorney specializing in intellectual property. The editor is a consultant in the application of automated object management systems for use in museums and visual resources collections, with a background as an academic in the history of art. Not all important players are represented here. Missing are the points of view of artists, publishing and independent art historians, publishers of conventional and electronic media, slide vendors, and professional infringers, among others. In addition, there are no articles that challenge the very notion of copyright and which attempt to undermine the assumptions that have defined the authority given to privately held intellectual property—but see Maryly Snow's review of Copyright, Public Policy, and the Scholarly Community in this issue. Several articles speak directly to museum matters: Bearman/Trant, Akiyama, Keshet, Weil, Walsh and Rottenberg/Pantalony in particular. ¶9 The papers in this issue have been divided into three main categories: (1) articles by image providers, (2) articles that are interpretative, analytical or which are essentially position statements and (3) articles about the law and legislative events. This last set explains and interprets the law in its application to image resources; it reports on the legislative process, and analyzes its consequences. Finally, there is one book review. ¶10 Admittedly the similarities between articles that have fallen in one or another of these pigeon holes can appear to be more convenient than substantive at times, for in one way or another each article is interpretative and molded by self-interest; each is based on a view of the law and written in the shadow of the promises and threats of imminent legislation. Within each group the reader will find vast differences in outlook and across groups the reader will find profound similarities. ¶11 Among the papers submitted by image providers, readers will note an article (1) that describes methods and game plans of a commercial image license house—Bill Gates' Corbis Inc. (Akiyama); (2) that argues the merits and discusses the cooperative and experimental nature of the site licensing scheme being prototyped by the Getty Educational Site Licensing Project (Bearman and Trant); (3) that surveys the economic and licensing issues faced by the visual resources department of the Israel Museum (Keshet); and, finally (4) that proposes establishing a cooperative image archive without encumbrance from claims of copyright so to make images available for free use without a required license fee (Kohl). ¶12 A similar variety of points of view may be found in section two. Here are gathered articles that interpret current laws and copyright guidelines—usually from the point of view of collections and users. Positions in this group run the gamut from the highly conservative, cautious, pro-copyright or restrictive views found in published fair use guidelines (McLaren), to relatively radical (though not the most radical) attempts to liberate images from the hold of copyright claimants (Weil, Walsh). Stephen Weil shows how the four fair use guideposts stipulated by statute may be applied to a multitude of museum image uses. Peter Walsh aims to expand our perception of the kinds of materials that are available in the public domain. Discussions of methods used to achieve fair use and other kinds of access to images include descriptions of historical practices vouchsafed by tradition (Sundt, Snow). There is even one lamentation on the decline of free speech and the demise of the educational mandate (Taylor). Christine Sundt describes how images are used in art history teaching as a preface to her entertaining list of examples of analog and digital image usages that she would like to see pass as fair uses. Instead of setting an illustration in print, Ms. Sundt provides a URL. Maryly Snow (see also her review) covers two topics in her paper. First is a history of the use of and collections of reproductive photographs as tools for the teaching of art history, and second is advice for anyone negotiating a site license to obtain visual materials. ¶13 One paper in this group, Karlene McLaren's "Copyright: Fair Use or Foul Play" is different from the others in that it is not addressed specifically to an audience of suppliers and/or users of images, rather it is aimed at primary and secondary school teachers in an attempt to explain the safe pathways and procedures available to teachers for the incorporation of fairly used copyrighted materials into their lessons. Ms. McLaren's topic is the explication of copyright guidelines as applicable to their use in educational contexts. Drawing much of her material from the Unites States Code Annotated (USCA) put out by the legal publisher West Publishing Company, among other sources,[2] we discover that the scenarios presented in these "classroom guidelines" for educational use of copyrighted materials are more highly restrictive that what is commonly practiced today in institutions of higher learning, such as, for the present readers, in slide and image collections. In her discussion of classroom use of materials such as music, software, and broadcast media, readers will find many correspondences that relate disturbingly to their own practices, but perhaps none of these is so closely matched as are the required fair use goals of "brevity," "spontaneity" and the prohibition against forming collections—the "cumulative effect"—that the guidelines impose when using copyrighted materials in the classroom. These issues will be discussed below. The McLaren article is included in this collection so that readers of Visual Resources can place the relatively narrow issue of the use of images in higher education within the larger context of educational license and prohibitions, and as a reminder that some guidelines guarantee a particularly narrow range of activities to qualify as fair use. ¶14 Finally, five papers are presented that are concerned with the effects of recent laws and the efforts to create legislation and guidelines governing the development, maintenance and use of electronic and analog visual resources and museum collections, including the NII Conference on Fair Use (CONFU) and the "White Paper." Three of these are written in the context of United States copyright law, while two concern the development and application of copyright and intellectual property law in Canada. ¶15 Barbara Hoffman, legal counsel to the College Art Association and arts law attorney, reviews several points of law germane to the operations of image resource collections and to the practices of scholarship, placing special emphasis on the legal definition of fair use, the four tests for which are replicated time and time again in this volume. (See especially papers by Weil, Snow and Carnahan.) Ms. Hoffman discusses key examples of case law, and their consequences for the development and maintenance of visual resources collections. (See the review by Maryly Snow for a description of some of these cases and decisions.) Her broad analysis, focused on issues affecting visual resources archives and scholarship, should be compared to the penetrating interpretation offered by Stephen Weil, whose point of departure is the use of copyrighted works in a museum setting, and it also should be compared to the exceedingly narrow prohibitive view of these issues found in the guidelines cited by Karlene McLaren. ¶16 Barbara Hoffman's aim is to establish a setting for arguing that fair use must be guaranteed in applications made available via the NII. But, this is all by way of prologue to her report on the CONFU meetings she attended with Virginia (Macie) Hall, who also reports in this collection. Ms. Hoffman recounts how poorly the advocates for fair use are faring, especially against those who advocate licensing as a means of obtaining intellectual properties. Ms. Hall also reports on the CONFU hearings; in these two articles one finds juxtaposed a report by an intellectual property attorney with one by a visual resources curator. They worked together, but the differences in outlook expressed in these articles make for an interesting comparison: the first paper considers the issues in relation to principles established in statute and case law, while the second, by and large, looks at them from an operations perspective. ¶17 Caron Carnahan takes as her topic the fair use consequences of the legislation proposed in the "White Paper" put out by the Working Group on Intellectual Property Rights of the U.S. Information Infrastructure Task Force.[3] Following the lead provided in Pamela Samuelson's "The Copyright Grab,"[4] Ms. Carnahan notes how the main goal of the proposed legislation is to protect commercial intellectual interests to the exclusion of the goals of the non-profit, non-commercial educational community and to the detriment of the traditional base of "fair users," among which many academic visual resources collections in the United States count themselves. Two valuable rights, the "first sale doctrine" and "fair use," according to Carnahan, will be defined out of existence in the world of electronic information access. ¶18 The two papers contributed by representatives of Canadian institutions—the Concordia College Slide Library (Montreal) and the Canadian Heritage Information Network (CHIN)—are about issues of concern to all collections: the formation of copyright cooperatives, the rights of creators (moral rights) and the right of exhibition. Curiously, these topics, while universal, have not been made the specific subject of any of the other papers, though their issues do pop up here and there. Barbara Hoffman characterized her own paper as a "view from the trenches," an outlook that may well describe all the papers in this group. Certainly Linda Bien's lament on the intricacies of obtaining rights and permissions by an institution in a country that does not have recourse to the benefit of (one must say) grass-is-greener "fair use" (as defined in, or interpreted from United States Law) and where the legally sanctioned copyright collectives never seem to work, can be taken as a good example of battlefield literature. ¶19 Linda Bien addresses the frustrating history of the attempts by the Canadian Visual Resources Curators (CVRC) to get the Canadian government to acknowledge the unique needs of the Visual Resource Community in the context of the drafting of "fair use" provisions. Her story implies that educational issues and scholarly warrant assume very low positions in the set of priorities created for copyright reform in Canada. Similarly, the creation of copyright collectives, agencies for collecting royalties in service of copyright owners and for granting rights to uses, has provided little or no help, and may even have served to increase the level of confusion and frustration while providing unworkable administrative nightmares. Ms. Bien's article, truly, another "report from the trenches," clearly shows the disruptive environment created when copyright law ignores a major constituency of intellectual property users. Her addendum is less pessimistic. ¶20 The situations described in Linda Bien's article should be compared to the attempts to provide low protocol access to images by MESL and Corbis. The frustrations she relates should be compared to reports by Macie Hall and Barbara Hoffman. ¶21 Compared to the plight of visual resource collections, in Canada, museums seem to have a much clearer picture of their sets of responsibilities (as well as the ironies) and have a more definitive sense of national policy in this regard. The paper presented by Barbara Lang Rottenberg and Rina Elster Pantalony in their capacities as policy administrators and analysts for the Canadian Heritage Information Network (CHIN), explains Canadian moral and exhibition rights and compares them to similar but different U.S. versions. In the second part of the paper the authors choose four examples of different kinds of art, and expose them to an analysis of how the law would be applied to each. Topics raised by the contributing authors Top | Table | Next | Notes | Home ¶22 The following tracts analyze trends and issues that have emerged as topics of concern in the papers presented. The choice of subjects to discuss has been made by the editor and does not necessarily represent a balanced survey of all the important topics; indeed, there has been no special effort to balance the discussion of any one topic. An effort has been made, however, to contrast the varying opinions expressed by the authors on these matters.
The administration of rights
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Home ¶24 Lacking conventional patronage from the sponsoring institution, the Israel Museum Rights and Reproductions department is forced to work according to a business plan in which profitability and minimization of loss has become, of necessity, somewhat more important (for the time being) than fulfilling its public mandate and its scientific and scholarly mission. Forced to acknowledge the interests of copyright holders of works in the collection (as in Canada and other Berne countries), and not being able to mine the economic potential of much of its modern holdings, the rights income, the valve that traditionally relieved museums of a few of their financial pressures, has been taken away from them. ¶25 Amalyah Keshet's article, in its description of the financial considerations pursuant to providing images for CD-ROM production, lends weight to the analysis and arguments proposed by Jennifer Trant and David Bearman in their paper on site licensing, the latter which places considerable emphasis on the unprofitable nature of museum-based rights management. Indeed, Ms. Keshet and other contributors look out to the Museum Educational Site Licensing project (MESL) as a hopeful sign that the difficulty in making a market in CD-ROM images may soon be over. For her, it would seem, the commercial model has failed. The educational imperative has been blockaded by financial hard times. The author looks toward the day when the promised reduction of costs and the simplification of administration can restore the museum's historical role as servant to science and scholarship. ¶26 CD-ROM publishers now recognize that the commercial factor in their enterprises nearly guarantees that their resources must come at a dear price. The rudest awakening, however, must come to the scholars and educational workers who have traditionally benefited from a symbiotic relationship with museums and other image owners. Scholars have traditionally depended upon the kindnesses of the fair use privilege. If society wishes to renew its traditional support for scholarly investigation it will certainly have to develop picture resource models that reduce the unit cost of providing images—so that commercial suppliers can offer low cost images without incurring a loss, themselves, or so that non-commercial image holders can hold to a cost basis that is not linked to unique image sales. The former requirement may be met by commercial electronic distribution systems and the latter by site licensing. Several papers (Bearman/Trant, Keshet, Taylor) emphasize the failure of the traditional rights pricing structure in commercial and educational multi-media, CD-ROM projects. ¶27 Keshet's article should also serve as a call to scholars accustomed to receiving privileged access to and use of visual intellectual property. It is clear that this tradition, as institutions reinvent themselves into self-sufficient entities, is disintegrating, and it is obvious that art historians and scholars, whose complaints are often read on listservs like the Consortium of Art and Architecture Historians (CAAH),[5] being the supplicants in these matters, will be forced to discover a new model to serve the needs of their enterprises. Ms. Keshet graciously suggests that museums, themselves, solicit visual resource funds from kind donors to apply to worthy scholarly requests. Certainly, asking the scholarly community to support their own publication expenses out-of-pocket is a sign that society has marginalized the importance of their contributions. Patricia Taylor reporting on the draft multimedia fair use guidelines that the Consortium of College and University Media Centers (CCUMC) has established for using images, notes that while there is considerable latitude given to using images in purely local, personal, scholarly and classroom applications, it is clear that scholars are given no leeway when their work is slated for the commercial marketplace or for any other kind of distribution. ¶28 Another scenario aimed at achieving these ends is described in Jennifer Trant's and David Bearman's paper on the Museum Educational Site Licensing Project. Instead of forcing users to negotiate through the morass of individual rights permissions and obligations, instead of wagering on the benign indifference of rights holders to possible infringement or in taking refuge in the always chancy sanctuary of fair use, the educational site license is put forward as an attractive option to educators. In the site license, assuming that the agreed-upon terms are sufficiently broad (see Maryly Snow), educators and image resource caretakers will not need to pay attention to the intricacies of individual item property management. Scholars will be free to mine these resources at will and can devote their energies to something other than legal issues and to wondering whether their uses are fair ones. Licensing does involve disadvantages; it collides head on with the idea of the image repository and it side-swipes the traditional promises, privileges and guarantees of fair use. The articles by Allan Kohl, Stephen Weil and Peter Walsh suggest alternate methods of obtaining needed images, but at this point there is almost no recourse available than to deal with museums on their own terms. ¶29 Museum Rights and Reproductions departments, according to Ms. Keshet are also used to preserve and protect the reputation of their objects. Their rules govern how objects are reproduced, what quality they assume and how they are identified. The desire to protect the integrity of the art image (a different issue than protecting the integrity of the art object) is a common concern among writers. Similar calls in this volume may be found in the papers by authors Akiyama, Bearman/Trant, Taylor and Hoffman. However Peter Walsh, in his article, sees these protective measures as restrictions—potentially stultifying and limiting. What the museum and its representatives view as an obligation to its collection, and what artists see as a due respect for their own works—their moral rights, as it were—publishers, designers, artists (!) and scholars may see as limitations to their freedom of expression. More on this, below.
Property
and intellectual rights
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Home ¶31 To Mr. Walsh, all works have two domains of property. These are the physical object and the intellectual property that exudes from it, the former tangible and earth-bound, and the latter ephemeral, but for a time subject to sale and use by license or fair users. He argues that just as museums in countries that have endorsed the artists' rights provisos of the Berne convention have virtually lost control of copyright of works created recently, while still owning the object, the rights to the intellectual property component of those works consigned to the public domain should be considered separate from the object itself. Unlike some commentators in this issue who argue that a work of art is not like literature, the force of Mr. Walsh's argument follows from a strong analogy made to literature that is now consigned to the public domain. ¶32 It is particularly this loss of museum rights that Stephen Weil, writing from the museum's perspective, addresses in his essay. Starting from U.S. statute, the law that provides the key to claiming "fair use," Mr. Weil argues that the educational non-profit mandate of many museum activities offers opportunities to claim use of copyrighted images under the fair use affirmative defense. He admits that not all museum uses of copyrighted materials can be interpreted as fair uses. Some museum activities will undoubtedly be seen as predominately profit-making, and some as interfering with the copyright owner's attempts to turn images into income-producing properties. But within the traditional range of museum activities, Mr. Weil sees multiple opportunities to stake out fair use claims. ¶33 Peter Walsh observes that the world-wide inventory of public domain photographs of works of art will soon swell with old museum and gallery photographs, and will undoubtedly form the foundation of image repositories that can be used and distributed without fee, credit-line, attribution or other restrictions. Allan Kohl describes a project he undertook to provide access to a corpus of images unencumbered by copyright restrictions. These images, thus far, have come from donations of new images in which copyright is not intended to be enforced. To these, one would assume, may soon be added the contents of public domain repositories of the sort that Peter Walsh surmises will soon exist. Kohl's project, admittedly, is tentative, and will serve primarily as a testing ground in which to uncover issues that may arise with the distribution of works assigned to or inherited by the public domain. For instance, when commercial, income-producing imagebases exist side-by-side with free ones, there will be a tendency for photographers to try to locate their images first with those agencies from which they can obtain royalty payments. Even so, clearly, the number of public-domain/copyright-free repositories must soon increase, even if eventually users may be required to pay usage or membership fees to access them. ¶34 Providing access to images outside of the kinds of visual resource collections maintained by universities and art history departments is the subject of two articles. Karen Akiyama writing in behalf of Bill Gates' Corbis Corporation and Jennifer Trant and David Bearman for the Getty Art History Information Program's (AHIP's) Museum Educational Site Licensing Project (MESL), each, in their own manner have scripted strategies for supplying images to users.[6] Corbis has staked out all users of electronic media as potential clients and hopes to merge the services of a conventional stock photography house with those of a vendor of fine arts images. MESL's mandate, on the surface, is less entrepreneurial and is more highly focussed on establishing a mechanism of image distribution that will satisfy the needs of discrete classes of image owners and image users, and here, too, the distribution system will be electronic. The locus of operations for MESL is the university and the museum, apparently at this time it goes no further. One hopes that the stock houses and site license purveyors realize that with an appropriate price structure there is a market to be made and good will to be garnered among individual scholars and other non-commercial users.
Intellectual Freedom
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Home ¶36 In Canada (see Rottenberg article) the right to exhibit (although assignable) remains with the artist. The artist can prevent his or her works from being shown in contexts in which the artist disapproves; the artist has a right to protect the integrity of her creations, as she sees fit. Even when the right of exhibit has been assigned, it seems as if the right to prevent defamation of art objects and their creators may be used to stifle criticism or to prevent unwanted associations. Patricia Taylor asks whether a work of art can be above criticism, even more so than individuals may. ¶37 Museums perceive that the management of the public and published use of their collections ultimately reflects upon the value of the use of their images as a commodity and on the reputation of the collection as a whole. Individuals writing on behalf of museums (Keshet, Akiyama) clearly state that they are responsible for such duty of care. Artists and scholars, who ordinarily would be expected to rely on guarantees of verisimilitude, yet find these restrictions constraining (Walsh, Taylor). The right not to respect the aesthetic authority of an artist's work or of a museum's object may be bargained away in an attempt to obtain agreement on fair use guidelines (Hoffman). Nonetheless it is assumed that any image obtained through the public domain will be immune from the admonitions of the "preservators." ¶38 Agencies, brokers, image vendors and others who barter images for the copyright owner also have a vested interest in preserving the value of the images in their purview. Corbis, as it must, expresses its obligation to make sure that the works it can license are not misused. Their obligations to the object owner are profound; they cannot be perceived as damaging the object's intellectual property, be it its visual manifestation or its reputation—a new twist on the admonition: "Don't touch." ¶39 Sometimes (Bearman and Trant) the misuse is defined as a variance from a technical standard of fidelity, and it is understood that creative use of materials should not be prohibited. While the intent to hold high standards professed by some contributors (Akiyama, Bearman/Trant) must be lauded, one should remember that some creative uses of images require the introduction of obvious technical distortions, such as the way Andy Warhol in his screen prints and oils sometimes used distortion and lack of color registration to invoke the process of printing. As in pop music, where tonal distortions can be expressive, so in the visual arts distorted quotations may be used as functional ingredients of new images. Once criteria to authenticate high technical standards of image reproduction are established, images could be "stamped" with a "seal of good technical fidelity" that might be made to disappear in any second generation (uncontrolled or altered) copy, thus providing incentive for some users to depend on licensed resources and freedom for others to use what they can find. ¶40 The dilemma that these papers reveal on this question is rooted in the paradox that our society has created by its need to respect intellectual property rights while honoring the ideals of intellectual investigation and free expression. Pat Taylor's article, "By Line Drawings Ye Shall Know Them," investigates the ramifications of pitting the interests of copyright holders and moral rights holders against those of the academic community. Indeed, this theme has occupied the pages of this journal before—when the authority of the rights of the artist and his heirs were shown to have power to restrict the right to present biographical and analytical presentations.[7] ¶41 In the New York Times of June 16, 1996 we learn that the Rock and Roll Hall of Fame has trademarked its I. M. Pei signature architecture and has prevented a photographer from selling posters made from his photograph of the building. The intellectual property attorneys interviewed for the article seem to agree that trademark law provides the museum with the right to prevent profit-making off its trademark, even if it is part of the public environment. United States copyright law specifically permits the making of photographic reproductions of copyrighted buildings in public view.[8] The museum does admit that newspapers have first amendment rights to photograph the building that trademark cannot protect. But, between these two extremes where does the line fall that permits and prohibits use of images of this building? When owners trademark their signature architecture, speculates Paul Fahrenkopf of the U.S. Patent and Trademark Office, the skyline itself "technically may be protected against unauthorized reproductions." ¶42 A trademark is a commercial entity intended to signify a product, maker or company; trademark is a sign, not valued for its image but for what it represents. Trademark law specifically permits trademarks to be used by competing corporations in comparative advertising campaigns. No copyrighted image can be used that way without license. A letter to the editor of the New York Times on this issue notes that a trademark indicates source—where something comes from; trademarks validate and authenticate the objects on which they appear. There is no question that the photographer's poster is intended to convey the idea that it comes from the museum; it depicts the museum; it is not from the museum. The author of this letter sees a dangerous mixing of the domains of trademark and copyright here that is set to impinge on the public's right to use images of objects in the public view.[9] Trademark law has also been used to protect the style of artistic creation.[10] With copyright, trademark and moral rights working together, powerful tools exist that can be exploited to stifle the traditional give and take of artistic development. Several years ago Pebble Beach Golf Course in Carmel, California attempted to copyright its trademark tree—not the image of the tree, but the tree, itself. Nevermind who the creator was and whether He assigned His rights to the golf course. Sooner or later perhaps everything will be protected, but, without insuring the freedom to grow and develop, there may eventually be nothing around worth protecting. Learning in the arts and elsewhere, truth to say, almost always involves a degree of what some would label "infringement"—theft of intellectual property—but from the educational perspective, it may better be called "creative or developmental adaptation."
Making
slides from published illustrations
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Home ¶44 Without repeating the oft-told arguments, it is clear that enough visual resource curators and/or their university counsels consider the issue of sufficient gravity to have cause to warrant issuing local guidelines that place strict limits on the degree of copying permitted from a single source, or even to warrant banning the practice altogether. It would seem that university legal counsels either place little faith in, or have scant comprehension of fair use issues; or, preferring not to place the university in jeopardy, they may not wish to allow the fair use prerogative to be exercised. New stories appear with unremitting frequency about slide collections forced by opinion of university counsel to cease creating copystand images unless they receive specific permission from copyright claimants. This observer knows of one school that surrendered its entire collection of copystand photographs to a faculty member so that the school could not be held responsible for owning the "infringing" images. ¶45 Ms. McLaren states and Ms. Hoffman reminds us that educational guidelines, the so-called "Classroom Guidelines," permit making fair use copies only for spontaneous purposes. Archiving for reuse is an infringement, they report. Macie Hall and Pat Taylor counter this directive, holding that the spontaneity rule effectively prevents course design since in the visual arts everything must be prepared in advance. But Barbara Hoffman goes on to explain that the kinds of works to which these guidelines were meant to apply were literary, not pictorial. Linda Bien informs us how difficult it is to obtain permission from copyright holders—a difficulty not necessarily due to cost or unwillingness on the part of the copyright holder, but rather to the immense administrative overhead involved, an inhibition that affects both ends of the transaction. She notes the lack of cooperation of publishers and the inefficiencies or lack of authority of copyright collectives to act. Maryly Snow, agreeing with Christine Sundt, argues that the development of image collections fits the confines of fair use as defined by the law, that it is sanctified by tradition, and that the entire discipline of art history, as it has been taught from the beginning of the century (if not earlier), is based upon the expectation of the free and unencumbered right to collect and use displayable images—photographs and slides, as well as digital reproductions derived from multiple sources—copystand photography from published illustrations among them. ¶46 Most arguments supporting the claim that copy photography (including direct copies of objects) cannot contain sufficient originality to warrant copyright are based on a three-pronged proposition: (1) that the intent of the copyist is to be as faithful to the original as possible, (2) that the technical skill required to create "good" copy images requires that originality and creativity be minimized, and (3) without acknowledging its conflict with number two, that at its best, copies are never substitutes for the original in the way that an edition of Moby Dick can be republished, but are mere tokens, surrogates or signifiers of the original, possessing only sufficient similarity to their models to serve as pedagogical instruments, bearing as much relationship to the original as, say, an anatomical model does to a human. For these reasons, it is argued, images taken of art objects in the public domain cannot be copyrighted, and when they do appear published in books, they are free to be copied again for educational or other uses without having to put forward a fair use defense. The problem, it is asserted, is that our notions of copyright are based on the rules for the reproduction of literature, not images—the rules for one cannot easily be adapted into the requirements of the other. For teaching, anyone can make an exact copy of Moby Dick, but no one can ever make an exact or even a relatively close copy of, say, Hagia Sophia. The original is inviolate; the copy is a mere token. ¶47 Yet, when viewed from outside the context of having to provide faithful copies ("signifiers" to use Maryly Snow's word) for educational uses, the above arguments seem to be crafted by an imperative if not a felicitous justification. For when we ignore or diminish the role of the maker of the reproductive image, it becomes obvious that the copy never fully substitutes for the original, even though the purpose of the photo-reproductive act is to minimize any contribution by the process, and that the result is just a signal that evokes the original. This is why, as Christine Sundt reports, most slide collections never bothered to collect information on the source of their images. As a document, on the other hand, the photograph was always seen as a window through which one viewed the original object; the reproductive photograph was never understood to be an object in and of itself—it was just a tool, and a poor one at that. The reproductive photograph is a paradox—neither an object in its own right, nor a vera ikon of what it represents. ¶48 The copyist's role, when considering the act of creating copies or when seen from the vantage-point of the historian of the human mimetic impulse, looks quite different. Technical proficiency turns into a societal code for implanting shared values. Verisimilitude is merely an acknowledgement that such shared values have been perceived. To judge a product by considering the "intent" of its author may be interesting, and always appeals to our natural curiosity about others, but judging through "intent" ignores the influence of subconscious and other involuntary forces acting through the artist or copyist. In the language of criticism, to judge results by considering intent is manifestly an example of "the intentional fallacy." And finally, although copies are signs, all originals are signs, too. When an observer looks at an original he sees in it a sign that reflects the participation of that original, as seen by the observer, in the cultural, aesthetic and symbolic outlook of the observer. The copy fixes the copyist's view of the original in itself, which itself is viewed by another conditioned observer. Copies of the same original made over time sometimes readily reveal the changing dispositions of the copyists. Here is the old dilemma popping up again: is what we see the result of kunstwillen? or does the culture, the material and the technique combine on their own to make the style?[11] ¶49 Whether these conjectures have any relevance at all to copyright law remains to be demonstrated, and whether copyright law should acknowledge these understandings has not been determined yet. If the law serves to mediate the issues of the present, it may be forced to forgo speculations regarding how the future looks at its past, and must default to accepting images at face value as tools needed today. Ms. Hoffman, perhaps perceiving difficulties such as these, states that the sources of visual resources collections are so varied, within themselves, that it is difficult to say yea or nay to the question of making copyright-free or fair use copies. ¶50 Because institutions that hold original objects typically control the high quality images of their objects, both subtle philosophical arguments such as those above, as well as convenient justifications tend not to be relevant for obtaining high quality pre-publication photographic originals. Whatever the source, most visual resource collections rely on the fair use argument when obtaining images from published and non-published sources, but in these images the quality is relatively low. For publishing, high quality costly images are always preferable; public domain and fair use is rarely an issue. In Canada, where fair use is not defined or interpreted as broadly as in the United States, different situations arise. ¶51 Linda Bien, as cited above, tells of the frustrations encountered when Canadian visual resource collections attempt to obtain permission from publishers to copy from their books. She reports that most publishers wish not to be bothered with requests to copy. Ms. Hall, however, reports that publishers do, indeed, wish to develop a secondary market for their published images, and therefore would like ad hoc and routine copy photography prohibited altogether. Linda Bien reports that it is not clear if publishers, who, themselves most likely had to license their illustrations from copyright holders, have the right to prohibit or permit others to copy them. This observation is repeated by Maryly Snow. ¶52 The impracticability of obtaining license to copy published works is an argument often heard among visual resources curators contending that the practice of copystand photography should be considered a fair use. Maryly Snow ("Reproductions") takes this proposition one step further, demonstrating that the ability to make slides of images (of photographs and published objects) is to be directly credited with the invention of modern art history in its current form as an academic discipline. She maintains that the copyright laws, drafted to promote the development of study and criticism, together with the projected photo image (to be considered more of a sign or mnemonic than a simulacrum), provided fertile ground for the growth of this discipline and (by implication) any effort to curtail the traditional rights to copy such images will have a stultifying effect on the educational practices upon which, incidentally, the market to buy art books ultimately depends. Fair use should be considered the means of encouraging education, especially in those situations when the lack of access to fair use will tend to inhibit it.
The
commerce in images: who owns the images?
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Home ¶54 Karen Akiyama, writing for the Corbis Corporation, immediately brings us to the central paradox of intellectual property: Who owns it and who may use it? Highlighted is Mario the postman's response in the film Il Postino after being charged with "appropriating" a poem by Pablo Neruda, his friend. Ms. Akiyama quotes Mario: "Poetry belongs to those who need it." This wording (as it comes out in translation) must have been intended to be an ironic twist on the expected "Poetry belongs to the people," and, as such, underscores a subtle, but important difference between Mario and the formulaic manifesto of those people sometimes classified as "copyright deniers." The phrase that was not said would have turned the remark into a political statement rather than a personal one; it would have emphasized the rationale for the doctrinaire appropriation of intellectual properties for distribution to the masses, for it recalls and depends upon the slogan: "Power to the people." Even so, Mario's remark pits the idea of ownership against those who cannot acknowledge property rights or those who do not respect them. It is very difficult, as exemplified by the intellectual property wars between the United States and Asia, to acknowledge property when you don't have any yourself. In the nineteenth century, the United States, like China now, was a major infringer. Infringement may function as a societal tool that helps equalize social and economic inequalities, working much like water attempting to seek its own level. Perhaps human individual, social and political maturation requires a little theft here and there. Mankind, harking back to its Promethean benefactor, owes its very supremacy to such a theft. "Fire for the masses," he may have said—to give this myth a little Marxist twist. But Mario is different. He takes Neruda's poem, not because he thinks it belongs to him, but because he sees no differentiation between himself and Neruda. It fits, he needs it, he takes it. Poetry in this case is like sunshine; if it is there it belongs to whoever absorbs it. Without denying the validity of Mario's motive, Ms. Akiyama understandably follows another path. ¶55 While the above meanings are not necessarily unimplied by Mario's statement, the notion that "poetry belongs to those who need it" introduces a factor that any owner of intellectual property must eventually be forced to consider—a factor that flows like an underground river bringing sustenance to some of the papers printed in this journal: that the creative traditions of our civilization(s), in a real sense, are our common cultural property and are there for us to do with what we want—like sunshine—a human necessity with jurisdiction extending both beyond and before copyright and its rules. This property is there for those who need it; indeed, our laws make exception for personal use. Yet, it is this component of cultural property that Marcel Duchamp could call upon when he ridiculed a cultural icon by drawing a mustache on the Mona Lisa—now a cherished and protected work, but by his and our standards certainly a "defacement." How does one preserve this sacred cultural right in a society in which the personal, the educational and the commercial seem to meld so closely together? ¶56 As creators we inherit all that the past and present have to offer, as creators and thinkers we cannot agree to ignore any element of our heritage. We wish to preserve the past for our descendants; and we want to honor what is good and respect the property of others, for the very notion of property must certainly be a construct that developed out of the experience of theft. At the same time we want to be able to ridicule and distort the icons of the past and overthrow the values of our predecessors. We reserve the right to "salute" and "jab."[12] ¶57 These laudable goals provoke understandable tension between the copyright owners and the image users—a tension that ironically pits those who want to use the past creatively in their efforts to mold the present against those who wish to preserve how the past used its own past to mold its own present. ¶58 We may well speculate that it is the commercial model that makes these images available to us in the first place. Indeed, it may be that our very notion of cultural property is the result of the success of this commercial model and that freedom of access is not inherently inconsistent with being asked to pay for its use. Paying money for things does have the benefit of making users choose only the most important items. Not having totally free access may have its side benefits. ¶59 Being in the business of licensing or selling images forces one to determine at what point the use of intellectual property is commercial and at what point it is not. This, in fact, is one of the most interesting themes of Ms. Akiyama's paper, i.e., that Corbis is attempting to determine at what point to draw the lines that separate personal, educational, professional and commercial usages of its archives: there are so many potential customers and a special product for each one. It seems clear in this editor's mind that there is a struggle emerging in which image vendors and licensers will have to determine at what point their obligations to their financial goals, rights holders and investors stop, and at what point their public obligations begin. One paradox with which such corporations must continually live is that the profit-making sector may not be able to thrive unless it well defines its public responsibility, and conversely recognizes that their public mandate might be impossible without their having created a successful image supply business. Analogously, educational users must recognize that they live in a commercial world, and try as they might to do otherwise, are going to have to acknowledge its existence and demands—at least some of the time. Among those papers printed here, Ms. Akiyama's may be one of the few that comes closest to acknowledging this truth—that the public and private, the commercial and the educational are not opposing forces but the yin and yang (so to speak) of an integrated continuously merging whole. And the manifestation of this truth will come (ironically to some) out of the very process of determining how to maximize royalty income. It is inevitable that the process of determining the maximum financial worth of an intellectual property will come to be understood to be intimately tied to financing those very institutions responsible for the determination of the cultural worth of these same properties. ¶60 One of the deepest dark secrets in the rights management business, the kind of secret that everyone knows anyway, but which no one in business dares to utter, is the relationship between financial success and copyright infringement. The real-politic of success in rights management suggests that a modified disregard for infringement or unlicensed uses may prove useful as a means to grow a client base. The phenomenal success of the wordprocessor WordStar was as much due to its utility as to the fact that it was commonly stolen. Fair use, or from the publishers' point of view, selectively not challenging infringement, may serve as "seeding," a technique that helps build future demand—de facto coupons.
Tradition!
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Home ¶62 It is clear from the list of traditional practices of academic slide collections and scholars listed by Ms. Sundt, and, similarly, from the examples of the manners in which artists have always used the work of other artists, that some kind of exemption, less ambiguous than the current notion of "fair use," perhaps, must be created for the benefit of education, scholarship and the non-commercial non-profit practice of fine arts. The predicament encountered in doing this is that there is a fluid continuum these days between educational applications that should be governed by the commercial copyright code and those that should not be so ruled. Neither side wants to agree to a formula that slices the baby in half. ¶63 The public versus private mandate of visual resource collections is considered anew by Maryly Snow. In her analysis of the history of "photomechanical reproduction" as a tool for teaching, Ms. Snow argues that the copyright law's fair use allowance for "personal use" is not intended to limit the educational use of materials to be shared among classes and other groups. She maintains that "personal use" should be considered an antonym of "commercial use." In this way the images that appear in various media not specifically targeted at fulfilling the needs of visual resource collections may be collected and used in classroom situations, while the interests of vendors whose customer base is composed primarily of educational institutions and research collections may be suitably protected. ¶64 The problem of mediating the competing interests of image suppliers and image users is a theme that appears within a number of the papers published here. Jennifer Trant's and David Bearman's appraisal of the benefits of site licensing, as has been said, is echoed in Ms. Keshet's paper on the needs and travails of a museum's photo resource department (as vendor), and is discussed as an option in several papers submitted by visual resource curators from educational institutions (as users). Maryly Snow provides the perspective of an educational institution, discusses contracts and the contractual needs of education when negotiating site licenses. In all cases the desirability of the site license comes as a result of the efficiencies promised by evolving technology and ease of access. The need for these efficiencies is well documented in Linda Bien's paper, as are their benefits touted in the paper on the MESL project. Site license boosters may claim that in the long view, sometimes items acquired freely are more expensive than items acquired efficiently and neatly. ¶65 Although licensing has been presented as a panacea for a host of problems that have evolved when attempting to use traditional media, no contributors have sketched out the ways in which site license agreements and other formulas for digital delivery of images will change the mission of image resource collections in the future, and how they will affect their users, although we can identify this theme as a subtext in Barbara Hoffman's paper. Today we assume that visual resources collections collect images and that scholars and students can fulfill their research needs in the library and in other repositories of information. How will the visual resources collection evolve or even exist when it no longer necessarily holds or owns images; what will be the significance of the disappearance of repositories; how will the scholar achieve the objects of his or her researches when research is a pay-as-you-go no-refunds/no-returns endeavor? Among the studies collected here, no one has dared to speculate on what consequences will emerge when new methods of obtaining study and teaching materials have taken hold. An editorial conclusion Top | Table | Next | Notes | Home ¶66 As fair use guidelines are established for the operation of visual resources archives, some of its authors will most certainly attempt to downplay, ignore or even prohibit any possibility of users claiming copyright exemption through fair use.[14] ¶67 To rights holders fair use is an assertion put forward by users in the face of the law and contrary to accepted commercial practices—it is a claimed exemption from the law. In the eyes of the property owner the fair user always seems to be infringing, never exercising a right; like Prometheus, he seizes property without the benefit of license and places himself thereby into legal jeopardy.[15] It is a rare owner of intellectual property who will allow broad fair use practices to be written into fair use guidelines. Therefore, fair users will always be challenging rights holders either to ignore the purported infraction or to bring them to task for it. Guidelines will be helpful to users whose actions must fall on this side of caution and to owners who need a bright line to tell them not to pursue unlicensed uses. But guidelines are not laws, so ultimately, it is up to the user to determine when to manifest the conviction that his or her claim of fair use is justified—guidelines or no. ¶68 Indeed, this is the reason why fair use must be established through an affirmative defense. The court in this case represents civilization, itself; the court determines where to place the fulcrum on the scale that measures fairness to rights holders and fairness to presumed educational copyright infringers—fair users. ¶69 Guidelines, education, various levels of intimidation and rigorous pursuance of infringers may be the only tools rights holders have to protect their interests when the objects susceptible to fair use exist on paper, in books or in purchasable digital products like CD-ROMs. When it comes to the on-line world, the tables are turned—it is the rights holder who maintains the upper hand. ¶70 Because the most extreme instances of fair use claims have always been an aggravation to rights owners, and because even the less controversial ones have always been an annoyance, under the NII it is understandable that content providers will conspire to prohibit fair use altogether. In the digital world they have the power to do this preemptively, instead of pursuing perceived infringements retroactively. Electronic information resources can lock out fair users by exacting payment up front and by stipulating acceptance of restrictive non-negotiable license agreements. ¶71 But is this a step that they really want to take? Will forcing the traditional class of fair users for the first time to pay for all their resources be of benefit to society? Should all users pay without regard to how useful they find the materials they uncover? Or in the long run will such policies parch the fertile ground out of which our creators are born and nourished? ¶72 It makes sense when information suppliers say that without means to guarantee adequate return for their products, their will to produce will wither. But, how is one to judge "adequate," by short-term criteria or long-term criteria? Will not this short-term formula for compensation ultimately be a self-destructive one? What kind of forest is it where no new trees grow, where young trees cannot obtain the protections they need from their elders, where no new saplings are allowed to obtain the light they require to grow and insure the replacement of older dying trees—thereby sustaining the forest and providing for its continued existence? For our information and aesthetic culture to thrive it is crucial that the work of mature creators be made available to nurture the immature ones. ¶73 Perhaps it is unrealistic to expect rights holders to look past the goal of maximizing royalty yields. It is the government, as representative of society, after all, not the rights holder, who is given the task to grant both copyright protection and exemption from copyright. It is the law that is given authority to make sure that our long-term goals for the promotion of "science and the useful arts" are met and are not traduced by the needs of the hour. ¶74 Society knows that the educational use of intellectual property outside of the commercial system of rights and fees is essential; this is why fair use provisions have been written into the current law. It remains to be seen whether we will continue to guarantee education its prerogative and society its nourishment when certain commercial interests, the managers of the NII and similar distribution systems successfully make their doors tamper proof to anyone who does not use a credit card.
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