NINCH >> NINCH Programs
>> Copyright >> 2003
TOWN MEETING: New York, February 22, 2003
Digital Publishing: the Rights Issues
Biographies | Resources
| Summary Report
A. Baron Welcome
and General Introduction
David Green The Copyright Town Meetings
Robert Clarida Fair
Use Is Still Alive
Online: The Rights Issues
Chun, The State of
Play of Publishing Art History & Criticism Online or
"What is e-publishing?"
Jeffrey Cunard, Getting an Art
Journal Online: J-STOR & The Art Bulletin
Petra Chu and Peter Trippi, Starting an Art
History e-journal: the rights issues for Nineteenth-Century
Permissions & Risk Management
Christine Sundt Permission
Questions Desperately Seeking Answers
Siva Vaidhyanathan Give Us Some Breathing
Kenneth Crews The TEACH Act: its relevance
Robert Baron, Welcome and General
Robert Baron, outgoing chair of the CAA Committee on Intellectual
Property, welcomed participants to the program by noting that
it represented the sixth copyright town meeting jointly sponsored
by NINCH and the College Art Association.
began, Baron said, at the February 1997 CAA Conference, when
the first joint Town Meeting was convened on a Sunday
at Cooper Union College. The topic was the fair use of copyrighted
work in education and the hall was filled on only a days
notice. After all these years, with so much legislation
and tribulation, Baron said, here we are, still
tackling fair use, though it seems imperiled, one way or another.
these years, David Green, as one of the few people who
can connect the dots has acted as mentor and sometimes
task master to the Copyright Town Meetingsnot
just the ones jointly sponsored with CAA but with many other
intellectual organizations, including the American Association
of Museums, the Art Library Association, the New York Public
Library, and many others.
that he would soon turn over chairmanship of the CAA Committee
on Intellectual Property to Patricia Failing, Baron thanked
Green for the extraordinary spectrum of views he had presented
in the NINCH Town Meetings.
David Green, The Copyright Town Meetings
David Green began his introduction to the 21st NINCH Copyright
Town Meeting by explaining the nature and purpose of the National
Initiative for a Networked Cultural Heritage, a coalition
of more than 100 organizations and institutions drawn from
across the cultural community. As these very different entities
produce, describe, collect, and catalogue cultural materials
differently, NINCHs goal is to bring the parts of the
community together in the collaborative project of producing
a more cohesive body of online cultural resources.
described NINCHs vision for an online world rich in
cultural material in all media, including representations
of prehistoric artifacts, manuscripts, painted, drawn,
and photographed images, moving images, 3-D objects you can
touch, spaces you can move through, and buildings and cities
you can follow as they age and grow though time.
such a rich treasury for learning, creation, and discovery
and making it available, affordable, and useable for all is
an enormous task, Green admitted, requiring all
kinds of people to work together across the globe. But for
many, copyright law is the key that can allow or deny
the richness of such a space.
Copyright Town Meetings were established to bring together
the relevant stakeholders in creating and using intellectual
property to begin to develop practical solutions to the questions
of copyright law that will make possible the networking of
cultural heritage material.
York copyright town meeting, Green said, would focus on electronic
publishingwhat do we mean by publication in a digital
age? What are the rights issues? The control and access issues?
part of the meeting, he explained, would cover the landscape
of e-publishingthe activities of artists, scholars,
editors, researchers, and others which can be considered e-publication,
and the practical issues of getting an established scholarly
journal on-line and creating an entirely new on-line journal
in art history.
part of the meeting would deal with strategieswhat recourse
you might have if your request to publish is denied or if
you are unable to locate a rights holder. Finally, the meeting
would deal with the impact of last years distance education
legislation, the TEACH Act, on e-publishing efforts.
Clarida, Fair Use Is Still Alive
Robert Clarida of the law firm, Cowan, Liebowitz & Latman,
PC, sponsor of the Town Meeting, briefly addressed fair use
from the point of view of the copyright lawyer. Fair use,
Clarida said, is increasingly hospitable to scholarshipespecially
visual arts scholarship on the Internet.
pointed to several recent legal decisions, including one that
held that posting thumbnail-sized images in so-called virtual
search engines on the Internet is fair use. Thumbnails
posed no market harm for rights holders because
their use was functional and they had no
aesthetic quality that could be converted into commercial
case, a Beanie Babies guidebook was allowed to publish Beanie
Baby images as fair use, even though they offered only minimal
information. They were not a market substitute but an informative
publication. The documentary use of clips from old Hollywood
films was also declared fair use because it did not hurt the
market for selling such clips. In fact, by increasing public
visibility of the original films, documentary use would increase,
not restrict, the market.
Clarida concluded, is always something of an act of
faith. Still, he maintained, fair use was still a very
robust affirmative defense in nonprofit and scholarly use
of copyrighted materials. In fact, since the Supreme Court
first addressed fair use, virtually every high profile case
has come out in favor of the fair use advocate and against
the copyright holder.
ONLINE: THE RIGHTS ISSUES
The State of Play of Publishing Art History and Criticism
Online or What is E-publishing?
Chun began by pointing out that museums occupy a very interesting
place in the discussion of intellectual property rights. Museums
are, at the same time, rights holders and administrators,
authors, scholars, librarians, and publishers. As General
Manager for Electronic Information Planning at the Metropolitan
Museum of Art, she plays roles in several of these areas.
thus experience intellectual property issues from several
sides and understand, from the inside, the frustrations of
authors at the same time as they formulate their own policy
for working with authors. Museums, Chun stressed, live in
the same confusing, changing, uncertain world of intellectual
property concerns as everyone else.
that she would limit her remarks on e-publishing to three
exactly is e-publishing in a museum?
are the specific effects of these new publishing models
on authors and their rights?
are the latest developments in museum intellectual property
policy that might affect the work of scholars and art
is museum e-publishing?
Chun said that just as traditional print publishing at the
museum encompasses anything produced for the public, including
wall labels and brochures as well as journals and books, so
e-publishing has a broad definition. The earliest e-publications
in art history were those converted from print or were types
of publicationlike bibliographies and abstracts
where e-publishing was more economical or efficient than analog
examples of art history e-publishing include book reviews,
such as the CAA on-line
reviews, the Getty
Vocabularies, the on-line edition of the Grove
Dictionary of Art, dissertations and theses, electronic
library projects, e-journals, CD-ROMS, and DVDs. In most cases,
these e-publications went beyond the book model to add special
features, including the ability to conduct searches, to continually
update material, and to link and integrate resources with
developments included increasingly rich and complex museum
websites, electronic lesson plans, museum databases that made
available large sections of museum collections, and image
databases published under new kinds of licensing arrangements,
including encyclopedic databases like
AMICO and the Index
of Christian Art.
What impact has this e-publication environment had on authors?
It has meant, in most cases, a second round of permissions
in order to secure rights to images licensed for an earlier
print publication. Rights holders are often difficult to track
down. Licensing term lengths have become variable and terms
are often different from rights holder to rights holder, little
standardization. There are many new players in rights licensing,
including consortia like AMICO, and many different models,
all making it more difficult to sort through who holds which
in Museum IP Policy
Chun concluded by touching on recent developments in intellectual
property policy at museums. She explained that, at museums,
images and other material were originally created as by-products
of museum exhibitions, publications, and other programs. These
activities rarely operated at a profit. The advent of electronic
publishing had changed that environment, creating new demandsincluding
commercial demandsand new outlets for museum intellectual
thus had begun to formulate specific plans and policies for
managing and developing intellectual property. That process,
Chun said, is still very much underway, and there was a
great deal of space at the table for scholars and art
historians in helping to formulate new approaches and standards.
She urged scholars to join with us in formulating a
new strategy for making our content available to you.
Cunard, Getting an Art Journal Online: JSTOR and The
See Presentation Slides: as Powerpoint;
Cunard spoke about CAA's efforts to publish its journal, The
Art Bulletin, in electronic form as part of the JSTOR
described some of the reasons why CAA decided to use JSTOR
to archive The Art Bulletin in electronic form: eliminating
the need for CAA and libraries to store printed issues; facilitating
electronic access to the entire journal contents from the
desktop; and ease of searching across many issues. With JSTOR,
CAA's journals would be joining more than 100 other scholarly
journals and would be available in quite a different way from
other existing databases.
the negotiations with JSTOR seemed relatively straightforwardCAA
would grant a copyright license to J-STOR to convert issues
of The Art Bulletin and make them available online
to scholarsthere was a problem in that over the history
of The Art Bulletin, CAA had never obtained e-publishing
rights from contributors or image owners.
law specifically permits the publisher of a collective work
to publish the individual contributions to that work as part
of the collective work without getting separate permissions.
E-publishing raised the question of whether the contribution
was published as part of the work or not. Freelance contributors
challenged the right to rely on the copyright law to e-publish
in the Tasini case.
v the New York Times, decided in 2001, the Supreme Court
essentially held that a publisher must obtain permission from
each contributor to republish a work electronically, if the
user could access and perceive each contribution as distinct
and separate from the rest of the publication. Thus, unlike
earlier storage media such as microform, classic database
access to previously printed material is infringing in the
absence of contractual permission from contributors for e-publication.
A further class-action case was filed, and is now in mediation.
CAA, it would have been impossible, Cunard said, to clear
permissions from the hundreds of past contributors to The
Art Bulletin. But the nature of JSTOR which reproduces
and makes available to end users articles in the context of
the original publication was closer to microform and
Tasini can be read to suggest that obtaining permission from
prior contributors is not required.
ahead, e-publishers are now working to obtain e-publication
rights from contributors for future issues of their publications.
to CAA publications are now not able to publish without granting
electronic publishing rights to their material, and to clearing
e-publishing rights in third-party material, such as images,
that accompany the contributions. At the same time, however,
CAA is discovering that the rights holders to images are much
more reluctant to grant electronic rights than print rights.
They typically may want to charge higher fees and limit licenses
to only a period of years.
concluded by suggesting that licensors of images and other
third-party material should recognize JSTOR's academic, nonprofit
nature, and its intended user base. He warned that the more
assertive positions being taken by licensors with respect
to electronic rights are having a potentially chilling effect
on the use of images in journals that will be published electronically,
leaving many unresolved questions about who pays for, administers,
and monitors electronic image rights.
and Peter Trippi, Starting an
Art History E-Journal: The Rights Issues for 19th-Century
Chu briefly described the history of the electronic art history
Art Worldwide, launched at the 2002 CAA meeting in
arose over several years from the need for a journal devoted
entirely to 19th-century art. The need was felt more acutely
after the establishment, ten years ago, of the Art
Historians of 19th-Century Art (AHNCA), an affiliated
society of CAA, which quickly grew to more than 500 members.
A specialized journal was the number-one need expressed by
considering a traditional print journal and exploring the
possibilities of publishers, AHNCA began to consider an electronic
journal, with the advantage of being, as Chu put it, extremely
naïve about electronic publishing. With a $10,000
grant, AHNCA found an excellent web designer with good experience
in designing a journal and launched the first issue in electronic
its launch in 2002, the journal has make headway establishing
itself as a legitimate scholarly venue, with its own index
and International Standard Serial Number (ISSN). Three issues
have been published, with a fourth about to be posted. The
journal has also raised enough money to keep the site open
free of charge, allowing some 9,000 hits per month.
several of the rights issues that had come up with running
an electronic journal. Although the journal has copyright
notices protecting itself and its authors, monitoring and
enforcing this copyright, however, has proved problematic
for an organization with limited funds. Verbatim paragraphs
from the journal had been found on another website such
piracy is of course much easier when material is in electronic
had begun registering itself in the form of CDs with the Copyright
Office to ensure that its content would be preserved. More
even than copyright, Chu said, the issue of archival preservation
of Internet materials was of foremost concern to e-journal
authors and editors.
Trippi spoke of issues raised by licensing images for the
new journal. He explained that each article in the journal
might have as many as 32 images, more than many paper journals
can afford. One recent article included the authors
own photographs of a previously unpublished site and a slide
showexciting examples of what web publishing can offer.
The journal has also enjoyed positive cooperation from museums
that provide installation shots of exhibitions and thus has
been able to regularly illustrate installations more often
than most scholarly journals.
posts images, Trippi said, in a size that makes them clear
enough for readers understanding, but not high-quality
enough to be used by pirates making t-shirts and postcards
As with CAA publications, authors are required to obtain permission
for images and to pay reproduction fees. To help inexperienced
authors, the journal has included on its website a sample
request form and other image rights materials. Wherever
possible, the journal requests images in electronic format
to avoid the costs of shipping and express services.
themselves have photographed many of the images published
in the journal. Still others are out of copyright range. Rights
holders for other images have generally been prompt and cordial
in responding to requests, charging fees in the range of $50-200,
negotiated down in many cases.
concluded by citing the need to deal with reproduction fees
totaling as much as $1,500 per article a great burden
for a young scholar as well as the need to centralize
and standardize image distribution across institutions.
Much of the discussion centered on the limited terms often
encountered in seeking permission to use images in e-publications.
to questions, Trippi and Chu explained that three years was
the term that their Journal told authors to request for image
use. They said three years was manageable for themin
five years there could be a completely different environment.
After the term expires, the editors would take down the images
or make a link, with the museums permission, to a website
that as author, the Metropolitan typically asks for perpetual
permission, but rarely gets it. A three-year term is typical.
people, including Chu, questioned the logic in having to remove
images after a term permission expires. The image in
a book is still there, she said. But several rights
holding participants explained that term limits were imposed
as a protection against uncertainty because no one could
say how things might change in the future. Others emphasized
that term permissions, like everything else, were subject
to special pleading and negotiation by rights holders, and
were subject to future discussions.
PERMISSIONS AND RISK MANAGEMENT
Robert Baron introduced the second section of the Town Meeting.
He explained that the focus would now change to a discussion
of the conflicts between users of images and copyright owners,
beginning first with what happens when permission to reproduce
Sundt, Permission Denied
Questions Desperately Seeking
Sundt discussed a series of questions that are raised when
permission to use someone elses material is denied
either outright, by requests for high licensing fees, or by
the imposition of restrictions too difficult to meet. What
risks are involved in publishing without permission and how
can they be assessed and balanced?
pointed out that, by legislation, granting permission is the
right of the creator, at least for limited times.
But changes in copyright term have stretched limited
times from as little as 14 years to life plus 70 years.
She also pointed out the exemptions in copyright, including
fair use and the public domain, were designed to balance the
rights of copyright holders and the public. Such exemptions,
she said, should allow us to proceed to publish in some cases,
even after permission has been denied.
fair use cover our needs? Sundt asked. What else besides fair
use might apply? When does free speech protect us? What exactly
is in the public domain? Must we always be risk averse? In
some cases, Sundt said, good advice is to make full use of
fair use protections or, in other cases, not even to ask permission
to publish as this implies that the petitioner acknowledges
that permission is required. Failure to make use of fair use
exemptions might even result in the loss of those exemptions.
concluded by listing some unanswered questions
an author wishes to reproduce an artwork that is clearly
in the public domain, and has good material to reproduce
the work from, need she pay a reproduction fee requested
by the museum owning the work?
publishers accept the argument that the work is in the
public domain as acceptable for publication?
the author, believing her publication to be covered by
fair use, sign the publishers copyright warranty?
state contract law trump federal law in control of the
contract law can trump the public domain, are there any
fair use provisions within the body of that law?
happens if the contract holder goes out of business or
is bought out by another corporation?
many layers of law or claims of ownership attach to the
reproduction of an artwork?
the museum control the method of presentation in publishing
we assume that all artists heirs have rights to
proof should we request from those heirs?
the artists moral rights, in some cases, continue
Give Us Some Breathing Room
began his talk by citing the Supreme Courts famous 1994
ruling on 2 Live Crews parody of Roy Orbisons
Pretty Woman. The Supreme Court held that parody
is protected from copyright litigation by fair use [see Campbell
v. Acuff-Rose Music, 510 US 569 (1994)].
appears, Vaidhyanathan said, from this and other cases, to
be alive and well. But you could still find yourself
paying thousands in court costs to prove it. So we should
be more confident about making use of fair use and breathing
easy. But we are not.
cited a number of cases many brought up by friends who
came to him for free advice where fair use of material
was unclear or was challenged or where scholarly publishers
were too chicken to accept a fair use argument
from an author.
with or questions about fair use figured, for example, in
making scholarly use of unattributed political cartoons from
1940s newspapers, in reprinting ads from the 1930s and 40s
in a book on African-American culture, and in the quotation
of country music songs in a cultural history of country music.
Even quoting the lyrics of 2 Live Crews protected parody
of Pretty Woman in a book or article is, he said,
too legally ambiguous and complicated for most publishers
to deal with.
claimed fair use, as a practice, is more endangered than ever.
call him about advice in such cases, he, as a non-lawyer,
gives two answers: what he calls the responsible one and the
irresponsible one. The responsible answer is the one typically
given by copyright lawyers: it depends. The irresponsible
answer is: What is your financial risk tolerance? Are
you willing to strike a blow for fair use and academic freedom
that might take about a decade? He could understand,
he said, when these non-tenured friends decided that publishing
a scholarly book on time and in budget was more important
than fighting for the greater good.
as an exercise in freedom is, in fact, endangered, Vaidhyanathan
said for the following reasons:
use is only as good as your publishers faith in and
ability to understand fair use.
holders are often impossible to find. Invisible copyright
holders cant grant permission but they can surface
later and sue.
more and more copyright material is tied up in contracts
and users sign away fair use rights in return for access
fair use becomes irrelevant.
material becomes sequestered in database schemes and copy
protection systems, publishing fair use excerpts becomes
not only more difficult but illegal.
by entities like Hollywood and the entertainment industry,
fair use depends on exercise. You must use it or lose it.
If major players act as if there is no such thing as fair
use, and the rest of us cower, then the experience
of fair use, of education, of culture will be painful
also cited the Supreme Courts decision in Eldred vs.
Ashcroft, which recently held that the Sonny Bono Copyright
Extension Act was constitutional, even though it extended
copyright terms beyond what many considered to be limited
with a brief description of the Eric
Eldred Act, a proposal in Congress, which would
mitigate the limits on the public domain brought about by
Bono by allowing copyright to expire after 50 years, unless
renewed and re-registered for a nominal fee.
he urged his listeners to continue to exploit fair use and
to challenge the courts to give us some breathing room.
Kenneth Crews, The TEACH
Act: The Relevance of the TEACH Act to E-publishing
See Presentation Slides: as Powerpoint;
Crews noted the consternation and confusion about copyright
he had heard in the first half of the Town Meeting and commented,
"It's clear that we need to break free of these things
that are binding us and keeping us locked in. It's clear that
we need to move more towards fair use." But his subject
for the day, the TEACH Act, was not the same as fair use.
It had to be noted up front that the TEACH Act was completely
separate from fair use, although fair use remains alive and
well as an alternative for distance education.
The TEACH Act was ostensibly designed for the benefit of distance
education. But it also provides tremendous evidence of the
interrelationship between the rich variety of exceptions in
the copyright act and the world of publishing.
into law in November 2002, the TEACH Act creates exceptions
to the rights of copyright holders under certain circumstances
and in certain cases and subject to certain limitations
in the service of delivering distance education. The details
of the act require educational institutions to develop policies,
make notices of copyright to students and users, and limit
access to specific persons and for specific periods. Once
this system is set up, the content is further subject to limitations.
Certain types of works can be used in full; certain other
types of works can be used only in part.
Act is evidence that education and the world of publishing,
according to Crews, are approaching and looking like one other.
Publishing is moving toward delivery of information and content,
and looking a little like distance education. Distance education
is the delivery of content to students wherever and whenever
they might need itmuch like publishing. Congress was
thus well aware that the Act would have profound implications
for publishing, or at least that publishing would have a profound
interest in the TEACH Act.
described restrictions in the Act that were drafted specifically
with the future of publishing in mind. For example, materials
created for distance education must preserve technical measures
to identify and clarify that material. Works that are specifically
marketed for digital distance education may not be copied
and included in a course. There are restrictions on instructors
and their ability to digitize content, requiring them to check
the market to see if the material is already marketed in digital
form. Only lawful copies may be used and access to copyright
materials must be circumscribed limiting any adverse
consequences for copyright owners. There are further restrictions
on downloading and copying.
types of works, for example, Citizen Kane, can only
be used in part, in order to protect the market for the full-length
version. There are restrictions on retention of materials,
further suggesting the direction of the law in general
to reserve future markets for copyright holders. (See Mr.
Crews' article, "New Copyright Law for Distance Education:
The Meaning and Importance of the TEACH Act," available
on the website of the American Library Association: http://www.ala.org/washoff/teach.html).
gives rights, Crews concluded, and Congress creates exceptions
to those rights, giving some concessions to copyright owners,
and some to the public. Ultimately, however, in its provisions,
the Act provides careful protection of the interests of owners.
Market forces shape the law and the law puts the burden of
use on education to comply with the many conditions in the
law. Thus the TEACH act is an opportunity for education, which
should perhaps be taken advantage of, even within its restrictions,
at the same time that it offers opportunities for new markets.
here centered on how stakeholders in copyright issues attracted
and held the attention of lawmakers.
explained that when the Sonny Bono and Digital Millennium
Copyright Acts were in consideration in Congress, both went
through the standard special interest process. Pro-fair use
organizations like the American Library Association and the
Digital Futures Coalition were in the room, but
they didnt have the public behind them to get attention.
Public concern is higher now the question is not so
much one of lobbying dollars but of awareness and support.
use of material becomes more restricted, some cultural artifacts
for example, sampling in rap music are disappearing.
In other cases, permissions are becoming standardized by the
growth of consortia. The common denominator position in a
consortium is always no. So, speaking from the
least common denominator the consortia will usually say no
to a request. That answer sends the issue back to the user,
as it always does. Trademark law is also used to extend a
claim. Ironically, organizations like Disney make full use
of public domain material like Jane Austins novels,
then declare that they own rights that last forever.