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  • There is great complexity in the fee structures, with different material costs for slides, black-and-white prints, color transparencies, color prints or digital files, and reproduction fees. These are based on varied uses, including book interior, book cover, magazine interior, magazine cover, feature film, website, television broadcast, video tape, CD/DVD, poster, postcard, calendar, documentary, brochure, catalogue raisonné , thesis, exhibition panel, etc.
  • Ninety-nine percent of the museums had differential pricing in the above categories for commercial, nonprofit, and scholarly clients.
  • Nonprofit or scholarly status was frequently defined by the print run, but across the museums surveyed the actual number used in that determination varied.
  • In spite of elaborate rate schedules, most museums reported flexibility in setting the fees based on the skill of the client at negotiation, professional relationships between museum colleagues and the client, and the perceived worthiness of the organization or cause.

Clearly, museums have established pricing structures that favor nonprofit and scholarly use, but the criteria used to identify the client’s eligibility vary case by case. The handful of museums that have begun to make fee-free images available are defining a scholarly publication by the size of the print run, but they are using different numbers in that determination, ranging from a maximum run of two thousand to as high as four thousand. They have also adopted varying terms and conditions for electronic use. In September 2008, Creative Commons ( (External Link) ) announced a research study funded by The Andrew W. Mellon Foundation, Scholarly Communication Program that will explore commercial versus non-commercial use of content. Virginia Rutledge, Creative Commons Special Counsel, who is leading the study, explained in the press release that “developments in technology, social practices, and business models are pressing the question of what should count as a commercial use. The answer to that question should come from creators, who should be able to specify what uses they want to permit, subject to the limitations and exceptions to copyright or other applicable law.” The research is scheduled for completion in early 2009. Press release available at: (External Link) .

Complexity of rights landscape

The copyright laws of the United States are designed to protect original works of authorship, whether published or unpublished, while at the same time encouraging creative expression and promoting development of the collective knowledge. Copyright ownership is time-limited, and in recent years the term of protection has been extended from date of creation to creator’s death plus seventy years. The law gives the copyright owner the right to reproduce or authorize others to reproduce the work in copies. However, this right is limited by the doctrine of fair use, which permits copyrighted material to be used without permission, as well as other copyright exceptions. Moreover, in the United States, works published before 1923 are in the public domain and therefore no longer subject to copyright laws. For an excellent survey on copyright and public domain, see: Susan M. Bielstein, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property (Chicago and London: University of Chicago Press, 2006).

Public domain

Historically, museums have asserted copyright in photographs of works in their collection even when the underlying work of art is in the public domain and therefore not protected by copyright. Deborah Gerhardt, Director of Intellectual Property Initiative and Adjunct Professor of Law, University of North Carolina School of Law, Chapel Hill, is undertaking empirical research on one specific but ambiguous area of copyright law: how courts interpret the issue of publication to decide whether a work is in the public domain. The work is funded by the Scholarly Communications Program of The Andrew W. Mellon Foundation. Preliminary results are expected in fall 2009. Ms. Gerhardt provided the following information on the grant: “The [project] is premised on the theory that de facto practices regarding the use of many pre-1989 works are generally more conservative and permit less use than copyright law allows. [The] research would be especially useful with respect to images. Currently, the time and effort required to determine who owns rights to an image are overwhelming. Many scholars, publishers, libraries, and museums avoid using images for which the copyright status is unclear, even though that use might be a “fair use” or the work may be in the public domain. Clarification of these questions will enable much broader and more effective use of images on the part of scholars, institutions, students, and artists. This [project]seeks…to create several resources to facilitate the use of images and other works for which the copyright status may be unclear.” Their reasons included controlling how the images would be used, trying to ensure the quality of reproduction, and recouping partial production costs to support more photography. However, in the 1999 The Bridgeman Art Library v. Corel Corporation case, the judge ruled that exact photographic copies of public domain works could not be protected by copyright because the copies lacked sufficient originality. This holding was recently supported in a decision of the Federal Court of Appeals for the Eighth Circuit. Today, many museums are still claiming copyright over images of works in the public domain, but other museums are questioning this policy. The College Art Association, the New York City Bar Association Art Law Committee, ARTstor, Creative Commons, and Art Resource co-sponsored a symposium entitled “Who owns this image?” A report on the event can be found at: Gretchen Wagner, “Art, access in the public domain after Bridgeman v. Corel,” Images, the newsletter of the VRA 5, no. 3 (2008), (External Link) .

Third-party rights

Museums with contemporary art collections are faced with an additional licensing challenge. Although they may own the actual work of contemporary art, the artist generally retains the copyright. To publish an image of such an object, the owning museum must seek permission from the artist, artist’s estate, or a copyright licensing agency representing the artist, such as the Artist Rights Society (ARS), unless fair use or another exception to copyright applies. Artist Rights Society: (External Link) . In reproducing the work, the museum often is required to agree to the artist’s terms and conditions of use, which are generally non-exclusive, and specify a given timeframe, set number of copies, and the territory of distribution. Outside clients seeking to publish a contemporary work in a museum’s collection acquire the image from the museum and are reminded to obtain permission from the copyright owner of the work depicted in the image before publishing the image. Some museums fear that relinquishing this gatekeeper function may jeopardize their relationships with artists and their heirs, although museums typically do not facilitate permissions between artists and publishers.

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Source:  OpenStax, Art museum images in scholarly publishing. OpenStax CNX. Jul 08, 2009 Download for free at http://cnx.org/content/col10728/1.1
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