Copyright and Fair Use: The Great Image Debate (Visual Resources (M.E. Sharpe))

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EDITORES

Helene E.Roberts Art History Department

6033 Carpenter Hall Dartmouth College Hanover, New hampshire 03755

Christine L.Sundt Architecture and Allied Arts Library

University of Oregon, Lawrence Hall Eugene, Oregon 97403

Members of the Editiorial Board

David Bearman, Archives and Museum Informatics

Eleanor Fink, The Getty Art History Information Program

Fiorella Superbi Gioffredi, Fototeca Berenson

Dan Jones, Peabody Museum, Harvard University

Anne-Marie Logan, Yale Center for British Art

Jeanne Marty, University of North Carolina at Asheville

Claudio de Polo, Fratelli Alinari

Rachel Stuhlman, George Eastman House

John Sunderland, Courtauld Institute of Art

Founding Editor: Patricia Walsh

AIMS AND SCOPE Visual ResourcesAn International Journal of Documentation is devoted to the study of

images and their use. Those images which depict architecture and works of art are of primary concern. The process by which these images are made, organised and ultimately utilized is investigated. This journal explores how visual languare is structured and visual meaning communicated and aslo illustrates how picture collections are acquired, organised, indexed, and preserved. Its scope delves into the past and looks toward the future. Included herein is an analysis of how reproductive images have influenced the perception of art, and how the interpretation of images has affected academic disciplines, including anthropology, archaeology, history, and particularly art and architectural history. Visual Resources examines early attemps to document the visual, reports on the state of visual resources, assesses the effect of electronic technology on the future use of visual material, and provides a platform for the reporting of new ways to organize and access visual information. It hopes to incite further experimentation and speculation about the potential uses of visual materials, and to increase the appreciation of visual documentation.

Visual Resources is indexed by Art Index, ARTBibliographies, Bibliographies of the History of Art, and Fotodok.

Notes for contributiors can be found at the back of the journal.

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VISUAL RESOURCES

An International Journal of Documentation Vol. XII, No. 34 1997

EDITOR: Helene E.Roberts Dartmouth College

TECHNOLOGY EDITOR: Christine L.Sundt University of Oregon

REVIEW EDITOR: Elizabeth ODonnell Dartmouth College

BIBLIOGRAPHER: Patricia L.Keats California Historical Society

NEWS FROM THE GETTY INFORMATION INSTITUTE EDITOR: James M.Bower Getty

Information Institute Published by Gordon and Breach

GORDON AND BREACH PUBLISHERS Published in The Netherlands

VISUAL RESOURCES An International Journal of Documentation Special Issue on Copyright and Fair Use: The Great Image Debate Vol XII, No. 34 Edited by Robert A.Baron

TABLE OF CONTENTS

Contributors x

Editors Introduction, Summary and Analysis. Robert A.Baron,

1

IMAGE PROVIDERS

Rights and Responsibilities in the Digital Age. Karen A.Akiyama,

23

Museums and Intellectual Property: Rethinking Rights Management for a Digital World. David Bearman and Jennifer Trant,

30

Fair Use, Fair Trade, and Museum Image Licensing. Amalyah Keshet, 40

Prospects for a Public Domain Art Image: Resource in an Era of Digital Technologies. Allan Kohl,

48

ANALYSIS, INTERPRETATION AND OPINION

Visual Resources Archives

A Visual Resources Advocacy Statement. Christine L.Sundt,

53

The Pedagogical Consequences of Photomechanical Reproduction in the Visual Histories: From Copy Photography to Digital Mnemonics. Maryly Snow,

60

By Line Drawings Ye Shall Know Them: Consequences of Barriers to Digital Reproduction. Patricia Taylor,

82

Copyright: Fair Use or Foul Play. Karlene M.McLaren, 90

Museums

Fair Use/Museum Use: How Close is the Overlap? Stephen E.Weil,

98

Art Museums and Copyright: A Hidden Dilemma. Peter Walsh, 104

LAW, LEGISLATION AND NEWS

United States

Fair Use of Digital Art Images and Academia: A View from the Trenches of the Conference on Fair Use (CONFU). Barbara Hoffman,

113

Fair Use and Digital Image Archives: A Report on the National Information Infrastructure Conference on Fair Use. Virginia M.G.Hall,

130

The Visual Surrogate as Intellectual Property: The Clinton Administrations White Paper and its Implications for Visual Resources Collections. Caron L.Carnahan,

137

Canada

Moral Rights and Exhibition Rights: A Canadian Museums Perspective. Barbara Lang Rottenberg and Rina Elster Pantalony,

144

Canadian Visual Resources and Canadian Copyright. Linda Bien, 154

REVIEW

Copyright, Public Policy, and the Scholarly Community, Edited by Michael Matthews and Patricia Brennan. Maryly Snow,

165

Author IndexVolume XII 172

Title IndexVolume XII 176

Selected Index of Terms, Names, and ConceptsVolume XII 180

CONTRIBUTORS

Karen Akiyama, managerbusiness & legal affairs, Corbis Corporation. She is responsible for managing Corbis legal activities which include content and technology acquisition, licensing and protection. Prior to joining Corbis in 1993, Karen Akiyama practiced law with the Seattle firms Davis Wright Tremaine, and Stokes, Eitelbach & Lawrence, where she specialized in mergers and acquisitions in the telecommunications industry and in intellectual property law. She holds an undergraduate degree from Stanford University and received her J.D. degree from Georgetown University Law Center.

Robert Baron is an art historian and consultant specializing in museum information studies, automated museum collection management systems and computerized scholarly cataloging. His credentials in the field of visual resources include working for H.W.Jansons Educational Lantern Slide Project and serving as faculty adviser for the visual resources collection in the art department of the California State University at Fullerton. In addition, Mr. Baron maintains a small catalogue of slides for sale to educational institutions. His most recent articles include reviews of Tony Bennetts The Birth of the Museum: History, Theory, Politics (Culturefront and Museum Management and Curatorship) and Digital Fever: A Scholars Copyright Dilemma (MMC). He is currently working on a monograph on Bernard Salomon for the Illustrated Bartsch series published by Abaris Books. Robert A.Baron, P.O. Box 93, Larchmont, New York 105380093. (914) 8340233 voice, (914) 8340284 fax, [email protected].

David Bearman is President of Archives & Museum Informatics, a Pittsburgh-based consulting firm. Bearman consults on issues relating to electronic records and archives, integrating multi-format cultural information and museum information systems, and edits the quarterly journal Archives and Museum Informatics. Prior to 1986 he served as Deputy Director of the Smithsonian Institution Office of Information Resource Management and as Director of the National Information Systems Task Force of the Society of American Archivists from 19801982. From 19871992, he chaired the Initiative for Computer Interchange of Museum Information (CIMI). In 1989 Bearman proposed Guidelines for Electronic Records Management Policy which were adopted by the United Nations Administrative Coordinating Committee on Information Systems (ACCIS) in 1990. Since 1991 he has organized and chaired the International Conferences on Hypermedia and Interactivity in Museums (ICHIM). He has published previously in Visual Resources (Vol. XI, No. 3/4). David Bearman, Editor, Archives and Museum Informatics, 5501 Walnut St.

Suite 203, Pittsburgh, PA 152322311, USA. 4126839775; fax 4126837366, [email protected]. Refer all questions regarding MESL article to J.Trant.

Linda Bien is Head of the Faculty of Fine Arts Slide Library at Concordia University in Montreal, Canada, where she holds the rank of Associate Librarian. She has chaired the Canadian Visual Resources Curators Copyright Committee for many years and is currently the Moderator of the Visual Resources Division of ARLIS/NA. Her e-mail address is [email protected].

Caron Carnahan is the Slide Librarian at Williams College, Williamstown, MA. She has presented papers at regional and national conferences, in the fields of visual resources management and art history. Most recently, at the 1996 annual conference, she moderated the VRA/CAA session on the visual surrogate as intellectual property. She is a member of the VRAs Intellectual Property Rights Committee, and is currently working on an article profiling the career of the Sandaks.

Virginia M.G. (Macie) Hall is the Curator of the Art History Visual Resources Collection at Johns Hopkins University. She is a graduate of Princeton and Johns Hopkins University. Her background in microcomputer applications led to the development of a project on the Johns Hopkins University web server involving digitizing images used in Art History courses for student review. In the fall of 1994 she became the Visual Resources Association representative to the Department of Commerce, Patent and Trademark Office Conference on Fair Use in the National Information Infrastructure. She is also the chair of the VRA Intellectual Property Rights Committee. Virginia M.G.Hall, Curator, Art History Visual Resources Collection, 256 Mergenthaler Hall, Johns Hopkins University, Baltimore, MD 21218. 4105167122, [email protected].

Barbara Hoffman has practiced and taught arts, entertainment and intellectual property law for over 20 years. Her clients include artists, directors, producers of TV, film and multimedia projects. She has represented the College Art Association and is the current Chair of the Committee on Art Law of the Association of the Bar of the City of New York. Barbara Hoffman, 40 West 57th Street, New York, NY 10019. (212) 9747474, (212) 9748474 fax.

Amalyah Keshet was born in the US and received her B.F.A. from Washington University, St. Louis. She came to Israel in 1977, upon completion of her M.A. in art history at George Washington University, Washington, D.C., and has been working at the Israel Museum since then in several successive positions, including Curator of European Art. Ms. Keshet has also taught courses on Museums in Israeli Society for the Hebrew Universitys Overseas Students program. Currently she is the Director of Visual Resources, formerly the photographic services/rights and reproductions department of the Israel Museum. She is responsible for building the department into the leading office for publications photography and copyright licensing among Israeli museums. She serves on the Museums Publications, CD-ROM Initiatives, and Internet committees and is currently managing the imaging and rights & reproductions aspect of the nation-wide collections management database pilot project of the Israeli Ministry of Education and Cultures Department of Museums. Amalyah Keshet, Director of Visual Resources, The Israel Museum, Jerusalem, POB 71117, 91710 Jerusalem, Israel. E-mail: [email protected].

Allan T.Kohl is Visual Resources Librarian at the Minneapolis College of Art & Design, where he holds the position of Senior Lecturer in Art History. He also teaches at the College of Visual Arts in St. Paul, where this past year he led a seminar dealing with intellectual property and copyright issues for visual artists. His extensive photographic documentation of cultural sites has appeared in numerous publications and academic image collections. At present he is working on an augmented version of the AICT project described in the paper published here. This project provides via the Internet hundreds of images, keyed to related illustrations in the standard undergraduate art history survey textbooks, for free use by educators.

Karlene McLaren, has been a special educator, since 1965, in Michigan, New York and New Mexico. From 1987, when she established the Developmentally Delayed Preschool and Early Intervention Program for two, three, and four year old children in the Roswell (NM) Independent School District, Karlene has been called on to find and develop resource materials for this unique age group. Copyright implications related to learning resources necessary for this program required an understanding of the Copyright law, its impact on pre-school education, and sources of materials needed or adapted from other resource bases. She was recently recognized for her efforts in these areas by being named as the winner of the 1996 Elementary Laureate Award for Teaching Excellence. Karlene M.McLaren, Roswell Independent School District, Valley View Elementary School, 1400 S. Washington, Roswell, NM 88201. (505) 6258202, fax: (505) 6258223, [email protected].

Rina Elster Pantalony obtained her undergraduate and law degrees at Dalhousie University in Halifax, Canada. She is a member of the Law Society of Upper Canada and practiced commercial and intellectual property law in Toronto. After spending a year studying art history in Paris, Ms. Pantalony joined the Canadian government as an analyst in copyright and arts policy. Rina Elster Pantalony, CHIN, Canadian Heritage Information Network, 365 Laurier Ave., West 12th Floor, Ottawa, Ontario, K1A OC8, Canada.

Barbara Lang Rottenberg is a graduate of McGill University, Canada, and the University of Leicester, England. She spent a number of years at McGills Redpath Museum as Assistant Curator of Anthropology. Since 1980, she has worked at the Canadian Heritage Information Network, most recently as director of Policy. A major focus of this position is the management of intellectual property in digital form. She is active in the international museum community, serving on the board of ICOM Canada and as post secretary of CIDOC, the Documentation Committee of ICOM. Barbara Lang Rottenberg, Policy Director for the Canadian Heritage Information Network, [email protected].

Maryly Snow is the Librarian of the Architecture Slide Library, Department of Architecture, University of California, Berkeley. She has participated widely in, and published extensively on, many aspects of issues involving computers and visual resources. Maryly Snow, Librarian, Architecture Slide Library, Department of Architecture, University of California, Berkeley, 232 Wuster Hall, Berkeley, CA 947201800, (510) 6423439, (510) 6435607.

Christine L.Sundt is the Curator of Slides and Photographs in the Architecture and Allied Arts Library at the University of Oregon. She is the Technology Editor of Visual Resources, and has edited two Special Issues on technology (Vol. VII, No. 4; Vol. X.

No. 1). She has written widely on issues of preservation and use of technology in visual collections. She currently serves on the College Art Association Committee on Intellectual Property. Christine L.Sundt, Architecture and Allied Arts Library, 5249 University of Oregon, Lawrence Hall, Eugene, OR, 97403, (541) 3462209, (541) 3462205 fax, [email protected].

Patricia Taylor, after spending eighteen years traveling the world with her military family, settled in Austin, Texas. She received her Bachelor of Fine Arts in Studio Art and her Masters of Arts in Art History from the University of Texas at Austin. In addition to exhibiting her work, Ms. Taylor has written and published articles in her speciality, Picassos Les Demoiselles dAvignon. She teaches a multimedia, multidisciplinary course, Introduction to the Fine Arts at Southwest Texas State University, where she has inaugurated a teaching and development multimedia lab. Presently, she is working on several educational multimedia projects. Pat Taylor, Art Department, Southwest Texas State University, San Marcos, TX 78666. [email protected].

Jennifer Trant is the Director of Arts Information Management, a consultancy based in Toronto, Ontario. Her recent assignments have included managing the Imaging Initiative for the Getty Art History Information Program, directing the Museum Educational Site Licensing Project, and preparing the report of the Art Information Task Force, Categories for the Description of Works of Art. Ms. Trant is actively involved in the development of museum data standards, chairs the Multimedia Working Group of the Documentation Committee of the International Council of Museums and regularly speaks and writes about issues of access and intellectual integration of networked cultural heritage information. Her recent publications include Introduction to Imaging: Issues in Constructing an Image Database with Howard Besser. In the Fall of 1996, she assumed responsibility for Collections and Standards Development at the Arts and Humanities Data Service, Kings College, London, The Strand, London WC2R 2LS, UK, [email protected].

Peter Walsh is director of information and institutional relations at the Davis Museum and Cultural Center, Wellesley College, and chairman of the Massachusetts Art Commission. He writes frequently on issues in the visual arts and architecture. Peter Walsh, Davis Museum and Cultural Center, Wellesley College, Wellesley, MA 02181. E-mail: [email protected], telephone: 6172832034, fax: 6172832064, Web site: http://www.wellesley.edu/DavisMuseum/davismenu.html.

Stephen E.Weil, Emeritus Senior Scholar in the Smithsonian Institutions Center for Museum Studies, served from 1974 to 1995 as Deputy Director of the Smithsonians Hirshhorn Museum and Sculpture Garden. From 1967 to 1974 he was Administrator of the Whitney Museum of American Art. A member of the New York Bar since 1956, Mr. Weil was co-author of the 1986 treatise Art Law: Rights and Liabilities of Creators and Collectors which won the 1987 SCRIBES Award as the best law book published the previous year. He is also the author of three collections of essays dealing with museums and the law, most recently A Cabinet of Curiosities: Inquiries into Museums and their Prospects (Smithsonian Institution Press, 1995). Stephen E.Weil, Emeritus Senior Scholar, Smithsonian Institution, Arts and Industries Building, 900 Jefferson Drive, SW, Suite 2235 MRC 427, Washington, DC 20560. (202) 3573101, (202) 3573346 fax.

ACRONYMS, ASSOCIATIONS AND CORPORATIONS

AALL American Association of Law Libraries

53 West Jackson Boulevard, Suite 947 Chicago, IL 60604

Tel: (312) 9394764, Fax: (312) 4311097 URL: http://lawlib.wuacc.edu/aallnet/allnet.html

AAM American Association of Museums 1225 Eye Street, N.W., Suite 200, Washington, D.C. 20005

Tel: (202) 2891818, Fax: (202) 2896578 URL: http://www.americanmuse.org/aam URL: http://www.netready.com/AAM/

AAMD Association of Art Museum Directors 41 East 65th Street, N.Y. 10021 Tel: (212) 2494423

URL: http://www.gatech.edu/CARLOS/AAMDO/

ACLS American Council of Learned Societies URL: http://www.acls.org/

ACM Association for Computing Machinery URL: http://www.acm.org/

ACUM Israeli authors and composers copyright collecting society ACUM

Limited, ACUM House, 118 Rothschild Boulevarde, Tel Aviv PO Box 14220, Tel Aviv 61140, ISRAEL

ADAGP Socit des auteurs dans les arts graphiques et plastiques 11, rue Berryer, F-75008 Paris, France. Tel: +33 1 45 61 03 87,

+33 1 43 59 09 79 Fax: +33 1 45 63 44 89

AHIP Getty Art History Information Program (Now Getty Information Institute) URL: http://www.ahip.getty.edu/

AICT Art Images for College Teaching, Minneapolis College of Art &

Design URL: http://www.mcad.edu/AICT/index.html

ALA The American Library Association Public Information Office, 50 East Huron St, Chicago, IL

60611 Tel: 312/9446780

URL: http://www.ala.org/

ARL Association of Research Libraries 21 Dupont Circle, Suite 800, Washington, D.C. 20036

Tel: (202) 2962296, Fax: (202) 8720884 Gopher: arl.cni.org E-mail: [email protected]

URL: http://arl.cni.org/

ARLIS/NA Art Libraries Society of North America URL: http://caroline.eastlib.ufl.edu/arlis/

ARS Artists Rights Society, Inc, 65 Bleecker Street, New York, NY 10012. Tel: (1212) 4209160 Fax: (1212) 4209286.

see URL: http://www.cisac.org/enmem.htm

ASCAP American Society of Composers, Authors and Performers URL: http://www.ascap.com/ascap.html

AUCC Association of Universities and Colleges of Canada (excluding Quebec) URL: http://www.aucc.ca/

CAA College Art Association 275 Seventh Avenue, New York, NY 10001. Tel: 212/691

1051 URL: http://alberti.mit.edu/caa/ E-mail: [email protected]

CAAH Consortium of Art and Architecture Historians (An Internet discussion list) [email protected]

CANCOPY Canadian Copyright Licensing Agency 6 Adelaide Street East, Suite 900

Toronto, Ontario M5C 1H6, Canada Tel: +1 416 868 1620, Fax: +1 416 868 1621

URL: http://www.cancopy.com/http://www.cancopy.com/ E-Mail: [email protected]

CARFAC Canadian Artists Representation/Le Front des Artistes Canadiens

URL: http://www.culturenet.ca/carfac/

CAUT Canadian Association of University Teachers

CBC Canadian Broadcasting Corporation

CCC The Copyright Clearance Center 222 Rosewood Drive, Danvers, Massachusetts 01923, USA

Tel: +1 508 750 8400, +1 508 750 4343 URL: http://www.copyright.com/

CCUMC Consortium of College and University Media Centers 121 Pearson Hall-MRC, lowa State University,

Ames, IA 500112203, Tel: (515) 2941811, Fax: (515) 2948089

CD-ROM Compact Disk, Read-Only Memory

CEO Chief Economic Officer

CHIN Canadian Heritage Information Network URL: http://www.chin.gc.ca/

URL: http://www.chin.doc.ca/

CIC The Creative Incentive Coalition URL: http://www.cic.org/

CNI Coalition for Networked Information URL: http://www.cni.org/

CNI [email protected]. Discussion list for copyright issues.

Listserv archives gopher: gopher.cni.org

CONFU NII Conference on Fair Use URL: http://gold.utsystem.edu/OGC/IntellectualProperty/confu.htm

CONTU Commission on New Technological Uses of Copyrighted Works

see URL: http://www.cni.org/docs/infopols/www/CONTU.html

Corbis Corbis Corporation URL: http://www.corbis.com/

CRC Canadian Reprography Collective (See CANCOPY)

CREPUQ Conference of Rectors and Principals of Quebec Universities

CVRC Canadian Visual Resources Curators URL: http://watarts.uwaterloo.ca/FINE/carl/slides/cvrc1.htm

DACS Design and Artists Copyright Society Ltd. Parchment House, 13 Northburgh Street, GB-London ECIV

OAH Tel: +44 171 336 8811, Fax: +44 171 336 8822

DFC Digital Future Coalition URL: http://home.worldweb.net/dfc/

EDUCOM http://educom.edu/

EFF Electronic Frontier Foundation http://www.eff.org/

GATT General Agreement on Tariffs and Trade

GII Global Information Infrastructure; Al Gore on GII: URL: http://www.cs.umbc.edu/pub/news/umbc.cs/msg00139.html;

GII Commission: URL: http://www.gii.org/

IITF Information Infrastructure Task Force, chaired by Assistant Secretary of Commerce and Commissioner of Patents and

Trademarks, Bruce A.Lehman. URL: http://iitf.doc.gov/

MESL Museum Educational Site Licensing project URL: http://www.ahip.getty.edu/mesl/home.html

MIT Massachusetts Institute of Technology

MUSE MUSE Educational Media 1 East 53rd Street, New York, NY 10022

Tel: (212) 6888280, Fax: (212) 6880409

NEA National Endowment for the Arts

URL: http://arts.endow.gov/Homepage/Homepage.html

NEH National Endowment for the Humanities URL: http://www.neh.fed.us/

NII National Information Infrastructure (See IITF)

OPAC On-line Public Access Catalogue

RRO Rights and Reproductions Organizations URL: http://www.kopinor.no/IFRRO/7.html URL: http://www.cancopy.com/linksout.html

URL: http://www.copyright.com.au/doc/organize.html

SLA Special Libraries Association URL: http://www.sla.org/

SODAAV Socit de Droit dAuteur en Art Visuel

SPADEM Socit de la proprit artistique et des dessins et modles 15, rue Saint Nicolas, 75012 Paris

Tel: (331) 43 42 58 58; Fax: (331) 43 44 84 54

UAAC Universities Art Association of Canada

UMI University Microfilms International (Xerox Corporation).

UNEQ Union des crivaines et crivains Qubecois 3492, rue Laval, Montral, Quebc H2X 3C8, CANADA

Tel: +1 514 849 8540, Fax: +1 514 849 6239, E-mail: [email protected]

UQAM Universit de Qubec Montral

URL Universal Resource Locator (Address for World Wide Web documents)

U.S.C. United States Code

USCA United States Code Annotated

USPTO United States Patent and Trademark Office URL: http://www.uspto.gov/

UVic University of Victoria

VAGA Visual Artists and Galleries Association, Inc. 521 Fifth Avenue, 8th floor, New York, NY 10017

Tel: (212) 8080616 Fax: (212) 8080064 see URL: http://www.cisac.org/enmem.htm

VIS-ART VIS-ART Copyright Inc. 3575 Boulevard St, Laurent, bureau 516, Montreal, H2X2T7

Quebec, Canada. Tel: (1514) 845.6061 Fax: (1514) 845.6240

see URL: http://www.cisac.org/enmem.htm

VRA Visual Resources Association URL: http://www.vra.oberlin.edu/

VRA-L Visual Resources Association discussion list ([email protected])

WIPO World Intellectual Property Organization URL: http://www.uspto.gov/wipo.html

URL: http://itl.irv.uit.no/trade_law/documents/i_p/wipo/art/wipo.html

WWW World Wide Web

Editors Introduction, Summary and Analysis1

by Robert A.Baron

Visual Resources, Vol. XII, pp. 233259 Reprints available directly from the publisher Photocopying permitted by license only

1997 OPA (Overseas Publishers Association) Amsterdam B.V. Published in The Netherlands under license by

Gordon and Breach Science Publishers Printed in Malaysia

INTRODUCTION TO THE ARTICLES

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 of sources, meeting production schedules, and working and developing filing and retrieval systems occupied the greater part of ones 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 imagescopyright and intellectual property. The papers in this volume speak to those issues surrounding the processes of obtaining and using imageswhat 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.

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, multimedia 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.

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. An 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.

Is the above a nave 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.

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 disciplinethough 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 not-withstanding, the industry does find home for extremists on both sides.

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

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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 technologydigitization and world-wide network transmissionis 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.

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.

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 propertybut see Maryly Snows 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.

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. 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

Editor's introduction, summary and analysis 3

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.

Among the papers submitted by image providers, readers will note an article (1) that describes methods and game plans of a commercial image license houseBill Gates Corbis Corporation (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 as to make images available for free use without a required license fee (Kohl).

A similar variety of points of view may be found in section two. Here are gathered articles that interpret current laws and copyright guidelinesusually 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) presents a history of the collection and use of reproductive photographs as tools for the teaching of art history.

One paper in this group, Karlene McLarens 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. McLarens topic is the explication of copyright guidelines as applicable to their use in educational contexts. Drawing much of her material from the United 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 collectionsthe cumulative effectthat the guidelines impose when using copyrighted materials in the classroom. These issues will be discussed below. The McLaren article is included in this

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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.

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.

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.

Barbara Hoffmans 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.

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 Samuelsons 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.

The two papers contributed by representatives of Canadian institutionsthe 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 Biens 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.

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 resources 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 users, 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. Biens 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.

The situations described in Linda Biens 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.

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

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

Visual resources 6

Amalyah Keshet, visual resource director for the Israel Museum, Jerusalem, a major source of images to publishers and scholars, writes from the standpoint of a museum visual resources department that has neither the funds nor the ability to provide gratuitous or low-cost museum services for the academic communitya break with tradition. We may look at this description of the Visual Resource Department of the Israel Museum as a harbinger of what might befall other museums (if it has not done so already).

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.

Amalyah Keshets 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 museums historical role as servant to science and scholarship.

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 imagesso 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 multimedia, CD-ROM projects.

Keshets 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.

Another scenario aimed at achieving these ends is described in Jennifer Trants and David Bearmans 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, 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.

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 restrictionspotentially 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 workstheir moral rights, as it werepublishers, designers, artists (!) and scholars may see as limitations to their freedom of expression. More on this, below.

Property and Intellectual Rights

Peter Walshs article on art museums and copyright looks at these issues from the perspective of the scholar who is being forced to acknowledge the de facto control that museums and other object owners may exert over the use of reproductions of their objects. What, from the museums viewpoint is an act of responsibility, to the publisher and scholar is a run-around tactic intended to prevent the free use of images of objects that have entered the public domain. Indeed, between the new rights artists themselves possess, and the disposition of rights in public domain objects, Mr. Walsh sees the museum with little, if any, ability to control the use of images after works they own

Visual resources 8

outside of the control achieved through intimidation or by limiting access to new images or even access to the objects themselves.

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. Walshs argument follows from a strong analogy made to literature that is now consigned to the public domain.

It is particularly this loss of museum rights that Stephen Weil, writing from the museums 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 owners attempts to turn images into incomeproducing properties. But within the traditional range of museum activities, Mr. Weil sees multiple opportunities to stake out fair use claims.

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. Kohls 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.

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 Programs (AHIPs) 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. MESLs 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

A common theme in several of the papers, though not investigated in and of itself, is the issue of ownership and moral rights versus the rights of scholarly and artistic free inquiry and free expression. We tend to think of our society as relatively free and open, where truth is tested and assessed in the marketplace of ideas. Competing against this marketplace are the proprietary claims of artists, object owners, and even of social groups who may lay claim to the use of and/or interpretation of a style or even to an historical period, as evidenced by the unfortunate Enola Gay exhibition.

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.

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 museum interests (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 artists work or of a museums 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.

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 objects intellectual property, be it its visual manifestation or its reputationa new twist on the admonition: Dont touch.

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

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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.

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 Taylors 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 beforewhen 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

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.

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 sourcewhere something comes from; trademarks validate and authenticate the objects on which they appear. There is no question that the photographers 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 publics 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 treenot 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 infringementtheft of intellectual propertybut from the educational perspective, it may better be called creative or developmental adaptation.

Making Slides from Published Illustrations

One of the unknowns that has stirred great introspection and uneasiness among curators of visual resource collections and which confounded CONFU conferees, as well, is the legality of populating image collections with images taken from published books and other ad hoc sources. Linda Bien, looking south at United States practices, bemoans the fact that Canadian collections do not have the same fair use privilege to engage in copystand photography that her American colleagues enjoy. But, across the fence the grass is not always quite as green as it appears from the north. It is true that Macie Hall and Maryly Snow (Photomechanical Reproduction), repeating widely-held views, are fairly certain that most copy photography does not offer sufficient creativity for copied images to cross the copyright line into the protected areameaning that published reproductive photographs of many public domain works cannot lay claim to copyright protectionbut here fair use is hardly an issue. Peter Walsh supports this agenda, too. But, museums and other owners, picture houses, photographers, and (in this issue) Karlene McLaren, and this writer take the other point of view. Christine Sundt, ostensibly disagreeing with colleagues Hall and Snow, states that few if any images automatically fall into the public domain, even though the process of reproducing images is more of a mechanical technique than a creative expression; [this is true even when] the subject of the reproduction is often itself in the public domain.

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.

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 holdersa 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

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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 imagesphotographs and slides, as well as digital reproductions derived from multiple sourcescopystand photography from published illustrations among them.

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 imagesthe 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, Michelangelos Last Judgment in the Sistine Chapel. The original is inviolate; even the best copy is always a mere token.

Yet, when viewed from outside the context of having to provide faithful copies (signifiers to use Maryly Snows 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 itselfit was just a tool, and a poor one at that. The reproductive photograph is a paradoxneither an object in its own right, nor a vera icon of what it represents.

The copyists 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 copyists 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

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.

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 does not exist, different situations arise. 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 copystand 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.

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

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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?

Another recurring theme, already mentioned, concerns the lack of applicability of copyright law as written and conceived to the nature of images and how they are used. Copyright law seems best applied to controlling literary products and performing products, but ill fits managing intellectual property in images (Hoffman, and others). This theme forms one focal point of Stephen Weils challenging application of the four tests for fair use to a museums use of reproductive images. Additionally, both Linda Bien and Macie Hall express their frustration in attempting to apply, first Canadian, and then U.S. law to the acquisition of images.

Karen Akiyama (Corbis) immediately brings us to the central paradox of intellectual property: Who owns it and who may use it? Highlighted is Mario the postmans 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, Marios 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 do not 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 saidto give this myth a little Marxist twist. But Mario is different. He takes Nerudas 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 Marios motive, Ms. Akiyama understandably follows another path.

While the above meanings are not necessarily unimplied by Marios 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 considera 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 wantlike sunshinea 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 Lisanow 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?

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

These laudable goals provoke understandable tension between the copyright owners and the image usersa 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.

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.

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. Akiyamas 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 editors 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 until it recognizes that its public mandate might be impossible without its 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 demandsat least some of the time. Among those papers printed here, Ms. Akiyamas may be one of the few that comes closest to acknowledging this truththat 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.

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One of the deepest dark secrets in the rights mana

Documents

Copyright and Fair Use: The Great Image Debate (Visual Resources (M.E. Sharpe))