2.6 Responses to copyright, access, and cost challenges

The difficulties posed by image requirements in art historical publication have yielded various challenges torestrictive interpretations of copyright and permissions standards.

Although the Bridgeman v. Corel decision was not widely noted in scholarly circles, it has yielded revisionistdiscussion in museum and publishing communities about the benefits, legality, and negative aspects of alleging or implying copyrightover flat images of flat works of art, particularly when those works are in the public domain. Buoyed in part by the courtdecision, several editors and authors have taken modest practical initiatives in raising awareness of the hold of copyright law overthe production and communication of scholarly and creative work. On occasion, for example, publishers include prominent notesannouncing that permissions have been denied, substitute images have had to be used, or images have had to be dispensed withaltogether. In 2006 the Art Bulletin began to note the public domain status of works of art in captions to illustrations of suchobjects. Although these statements call welcome attention to the questionable status of some copyright claims, they tend to haveunfortunate effects on the appearance of publications and may not constitute long-term remediation of the hold of copyright law overscholarly, creative, and critical uses of images. It is imperative that scholars be informed of their rights, responsibilities, andliabilities in the uses of images, but extensive ownership listings and public domain specifications in captions may inadvertentlyappear to accept a contestable system of implicit copyright claims. It is ironic that such preemptive strikes against legal actionshould be mounted to protect scholarly publications that are unlikely to be subjected to such challenges in practice.

Some publishers have in recent years become more inclined to scan images from previous publications withoutcopyright permission, particularly if the images are of works that have long been in the public domain and if they are oftwo-dimensional works of art. Although the Bridgeman decision seems to set a strong precedent for such use, publishers are likely touse this technique only as a last resort. Case law is not highly developed in this area, and, perhaps more crucially, a printed scanof a previously printed image invariably deteriorates that image and its approximation to the reproduced work.