Wednesday, April 30, 2008

museums and image permissions

Simon Tanner, Reproduction Charging Models & Rights Policy for Digital Images in American Art Museums (a Mellon Foundation study)

This was part of the background materials for the Corel v. Bridgeman panel I attended yesterday, and I found a couple of paragraphs particularly interesting:

Only 10% of the museums interviewed actively chased unauthorised use and did spot checks to look online and in publications for examples of misuse. The remaining museums mainly do not chase unauthorised use (unless particularly obvious or egregious) due to a lack of staff resources. Most museums will send a letter from the General Counsel’s office for blatant misuse. For lesser abuses the museum may look for retro-payment of the licensing fee, possibly order a cease and desist on the unauthorised use or just aim for a proper credit of the museum. However, such letters are frequently ignored by the infringers and the museums themselves never expressed a great sense of optimism about chasing infringement once it has happened. . . . . A large number of the museums interviewed also stated that none would be prepared to litigate even in clear cut cases and this may have much to do with the blurred lines between unauthorised uses against the license as opposed to a strict breach of copyright.

. . . . The interviewees were asked whether the museum would chase unauthorized educational use of public domain works or is this “fair use”.

90%+ of respondents felt that it is probably fair use as long as the museum is properly credited. All would defend educational use as a good thing, but many interviewees were concerned about losing control over the way the artwork might be depicted and also losing the credit line. All felt that text book uses are commercial use and thus not fair use in any circumstances.

One museum stated that they do not chase unauthorized educational use but feel it is definitely not fair use. Another museum stated that if used in a publication then it doesn’t matter if it is educational or not; they would be chased and would not be considered fair use.

This is a pretty clear practice, whatever the museums say.

Another notable section:

. . . . By market pricing, museums are making decisions about where they would like to be positioned on the scale of prices charged in the marketplace. Many factors drive this decision – would lowering prices drive more sales; higher prices might convey more prestige or efficiency; a mid price might show fairness? . . .. Most of the museums claimed to be pricing towards the bottom or middle of the market price range. What was not found in the interviews was a museum that perceived itself as leading the market price or defining the upper price limits (whatever other museums may think of their pricing).

In the museum field, then, all of the museums are below average. As with Lake Wobegone’s children, the mistake of fact there may produce distorted policies.

And finally:

A museum does not carry out image creation or rights and reproduction activity because of its profitability. These services exist because of the internal need for image creation and rights clearance matching up with an external desire to publish and use museum images. The need to promote the museum collections, to gain appropriate credit and to honour the artist and their work are the real driving factors that underlie these services. Most of these services are sunk costs to their museums that exist on budgets set according to the internal need for services and augmented with some external commercial and non-profit based usage. There are notable exceptions, but these museums do not represent the norm found in the survey or the interviews; and even here the success of the rights revenue is often based upon a small number (between 10 and 50) works which are iconic either to art history or the public sensibility.

The main financial goal of all the services interviewed is to make enough money to offset direct and visible costs like materials and new photography. However tempting it is for museums to look upon colleagues with 6 figure revenues with envy this would be a mistake. All those interviewed were spending as much or more money to provide services as they received in revenue and a high revenue generally represents large numbers of transactions or new imaging.

So, image permissions aren’t great revenue generators and there is no real prospect that they will become so. Given that, it seems that restrictive licensing is a mistake, unless we decide that a non-copyright owner is for some reason especially entitled to decide what “bad” uses are.


Hank Reynolds said...

The New York Public Library Digital Gallery says in its FAQ that it provides free and open access to its images "for personal, research and study purposes." However, it charges a "usage fee," which it admits is not based on copyright, for other purposes. The library claims to be the "physical rights holder of this material most of which is in the public domain for copyright purposes."

So NYPL waives its claim of copyright (if it ever had one) and asserts instead a "physical right," but the physical right is dependent on how you intend to use the copy.

I have practiced copyright law for many years, and I find this nonsensical. Am I missing something?

I understand everyone's reluctance to be the test case, but Bridgeman seems to be a well-reasoned opinion, and the restrictions on digital images are a misappropriation of the public domain.

Rebecca Tushnet said...

I think if the library is going to hand you a physical image, with attendant production costs and, even if it's just a loan, risks of damage/loss, charging a fee can make a lot of sense. But, for a digital gallery where you're just downloading the image--no, not so much. Because the question of whether a contract is enforceable is so much more difficult than whether a contract is sensible, though, it's hard to see this changing because of purely legal pressures.