The business of licensing images and clearing artist copyrights for arts publications can create a minefield of questions. What is copyright? But I work for a non-profit, surely my use qualifies as fair use? If the artist’s copyright is in the public domain, why do I have to pay a museum for a high-resolution image? How do I find an artist or their estate?
The discussion could be endless, but below are the FIVE things I wish someone had told me when I started working in Arts Publishing:
1). You are not alone. There are many people out there who are all discussing the same questions you have. Find a list-serve or discussion group. Some of my favorites are:
- MUSIP– a yahoo group for finding artist representatives and crowdsourcing questions about rights & reproductions.
- MCN-l– the list-serve for the Museum Computer Network, to discuss information technology issues in the cultural heritage community.
2). Fair Use is an important component of copyright law, but because there is no hard and fast rule regarding it, deciding to reproduce a copyrighted image under fair use is a difficult decision to make. Luckily, thanks to the hard working folks on the College Art Association’s Task Force on Fair Use, you now have a guide–The Code of Best Practice for Fair Use and the Visual Arts. For more Fair Use FAQ’s see the CAA page on Fair Use or The Stanford Fair Use Project.
3). Taking into account #2, I urge you to consider your relationships with museums and artists when deciding to use an image or artist copyright under fair use. My relationships with artists, estates, and institutions are my most important assets when it comes to completing a publication on time and on budget. Think long term — will not asking permission harm your relationship with the artist or the museum? Will you need to work with them again in the future?
4). Copyright infringement is a civil, not criminal crime. Working out whether something is copyright infringement can involve a lengthy lawsuit or negotiated settlement. Many times we ask for permission and pay at times exorbitant fees because we don’t want to test the legal waters. In reality, while we can wish it were possible to push back against frivolous and possibly incorrect assertions of copyright ownership, without access to high quality legal representation this may unfortunately not be an option for your organization.
However, you can still negotiate! Don’t hesitate to ask for a discount – or perhaps permission without fees. Non-profits have a good argument for paying less, or nothing at all, and many institutions have discounts for non-profit institutions.
5). Do your research. More and more museums and archives are putting high-resolution images of their holdings online and giving broad permission to use them, either for any use – or at least for educational or academic use. If you don’t do your research, photo agencies will still license you images — say from the Metropolitan Museum of Art. However, if you know those same images qualify for your use under the MET’s Open Access for Scholarly Use guidelines, the same images are free to use. A list of other institutions with policies like this can be found here: http://www.collegeart.org/ip/ip_image