Some of you may have noticed how, over time, some of the small images on our site—the ones with the “Why is this image so small?” caption – have morphed into larger, downloadable ones.
This has happened as we’ve found and contacted artists (or their heirs or other rightsholders), getting permission from them to share their work online, a project I worked on in spring 2009 as an intern in Digital Collections and Services. The work has become necessary as we’ve found ways to share our collection on the Web. As a cultural heritage institution we believe it’s our duty not only to make our collections available to the widest possible audience, but also to respect the intellectual property rights of others, as well as to set an example and provide some education about copyright in works of art.
But copyright in general – particularly when it comes to art—is a complicated subject these days. You have only to look at what is considered by many in the museums/libraries/archives world to be the authoritative copyright guide to see how many different considerations come into play when determining if a particular work is still under copyright, let alone who holds that right. In addition, for older works of art, there is often no way for us to tell when, or even if, a work of art was ever “published” in the legal sense of the term, and thus under which copyright “rule” it should fall. And copyright continues to be a matter of debate in the courts, so even the go-to chart doesn’t have all the answers.
What’s our answer? It’s not perfect. We’ve opted to take what we consider to be a conservative approach: even though some would argue that our posting of images of works online is an example of fair use, we’re seeking explicit permission from artists, in the form of nonexclusive licenses, in order to post anything bigger than a thumbnail. We’ve also tried to balance a respect for copyright with what is actually possible for us to achieve, since there’s no army of lawyers specializing in intellectual property at our disposal!
So we’ve decided to consider anything created after 1922 to be under copyright, even though many works may not actually still be protected. We’ve also decided to approach artists and ask for blanket permission for works created after 1922—again, even though many works may not actually still be protected. Deb is going to blog a bit more about our working guidelines coming up next.
With these guidelines, we were able to whittle down the number of works needing clearance to about 19,000, and the number of artists/heirs to about 4,300. Since January 2008, six part-time interns have worked on getting clearance, and each intern was allowed to define the artist pool she tried to reach. The intern before me, for example, focused on artists from the early 20th century with more than 50 works in our collection, while I researched artists who were included in our 2007 acquisitions. We’ve cleared about 2,500 works to date.
The work is slow going, despite our success rate. The amount of work we have to do for each artist isn’t dependent on the number of works she created, but on how hard it is to find her and how willing she is to respond. With our collections on the Web we have to specify that images may be used worldwide (which can ring alarm bells for anyone concerned with licensing), and we’ve tried to future-proof the license by including any media that have not yet been invented (another possible alarm bell). So even though we’re asking for a nonexclusive license which leaves the artist free to pursue other opportunities; even though our license only authorizes us to do things which are in keeping with our educational mission; even though as an established museum you’d think we should be trusted to maintain an artist’s legacy (that’s presumably why we acquired the works in the first place); even though other, more detailed images of the artist’s works may already be all over the Web, we still encounter suspicion. I suppose it’s not surprising in a world where a well-intentioned lexicon of the Harry Potter world is subjected to a lawsuit.
Although the word “copyright” might evoke boredom (or fear or anguish, as the Harry Potter case suggests), the work has actually been really interesting. Sometimes the search for an artist is as simple as Googling her name and finding her website; sometimes it takes a triangulation of information from various databases as I use the artist’s current age from one database, biographical information found elsewhere about where she’s lived, and last known address from a third source to find her through yet a fourth phone directory. At times our own library will yield a nugget from a newspaper clipping about the artist’s wife or children (or lack thereof). And together with this sleuthing I’ve had to keep track of where every artist we’ve researched is in the clearance process, plus follow up if necessary (with the appropriate amount of diplomacy).
Responses from artists have varied as widely as the work itself. Estates and heirs are often reluctant to grant us the broad permissions we seek. Maybe they’re concerned we will damage the artist’s legacy, though that hardly seems in keeping with our mission. Sometimes they’re commercial enterprises interested in making money off of that legacy. Living artists also run the gamut from ignoring us entirely to promising to sign and send the license back, but apparently never getting around to it, to returning a signed license the very next day. In one of our happier experiences, Gary Bukovnik recently sent an e-mail thanking us for “the experience of re-living those pieces on the list which I have long forgotten!…This was a very pleasant surprise waiting for me in today’s mail.”
But at our rate of progress we have a long way to go – 4,000 artists – so if you see a small image of a big work of art on our site and you know how to locate the artist or her heirs, please let us know (email@example.com)!