CAA just put out a Code of Best Practices in Fair Use for the Visual Arts. The content is relevant to all art historians, since it engages the use of images in publication and teaching. Since I am perhaps more given to reading legal jargon than some (my dad is an attorney, and I grew up in the language of depositions — not in the Van Der Weyden sense! — and whatnot), I’ve read through it and will digest some of the key points here:
-The section most relevant to art historians is 9-10, on Analytical Writing (and to a lesser extent, since fewer folks worry about this, 10-11 on Teaching).
-There is one point of particular interest to medievalists (and any art historians who work on art prior to Mickey Mouse), starting close to the beginning, where CAA disseminates the current — but often unknown — law on copyright for photographs of 2D works of art:
According to the reasoning of the decision in Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) … copyright-free material also includes faithful photographic reproductions of two-dimensional artworks, which are distinct from the artworks they depict.” (p. 7) That is, clear, head-on, evenly lit photos of medieval manuscript images are all and always fair use in the US. (Unless it has changed in the last few years, this is also the case in the UK.) [Emphasis added.]
-There is also a tacit acknowledgment of why we still often pay “permissions” when, in fact, they have nothing to do with copyright law anymore: “Sometimes, however, permission must be sought simply because a ‘sole source’ controls an art object or reproductions thereof–even where the work itself is in the public domain. Because demands for permission fees in this context are not based on copyright, fair use cannot be invoked to avoid paying such fees.” (p. 7) That is, if a library owns a MS and makes you pay a “permissions” fee to get it, they can do so and you can’t use Fair Use to force them to give it to you for free. [Personally, I’d like to see this become a more honest process, wherein they stop calling these fees “permissions fees” and just call them “image fees,” since that’s what they are.]
-The Code very importantly supports the idea that basically any use of an image to illustrate a scholarly argument is “transformative” (i.e. “it ‘adds something new, with a further purpose or different character,’ as the Supreme Court put it in Campbell v. Acuff-Rose Music, 510 U.S. 569), and therefore qualifies as Fair Use.” At length:
“[F]or a use to be considered ‘transformative,’ it need not–as, in fact, it usually does not–entail a literal modification or revision of the original material. Instead, it is crucial that it has put that material in a new context where it performs a new function. Thus, the reproduction of an image to illustrate the argument of a scholarly article could qualify, just as could the use of copyrighted material in new art.” (p. 15)
-Finally, if you are trying to work out the question for yourself in a particular instance, the key is found in “two key analytic questions”:
“Did the use ‘transform’ the copyrighted material by using it for a purpose significantly different from that of the original, or did it do no more than provide consumers with a ‘substitute’ for the original?”
“Was the material taken appropriate in kind and amount, considering the nature of both the copyrighted work and the use?”
-One more thing I’d add: There is a lot of fear around the issue of copyright, particularly on the part of publishers who often insist that authors pay “permissions” that are not legally required before they will publish a book or article. Perhaps #activism! we should start forwarding this handy booklet to all publishers, to press them on this issue. If they want to pay, cool, but their frequent insistence that authors fork out sometimes thousands of dollars to pay for something that the courts have declared unnecessary is in need of some challenge. And tenured folks, this is one of those places where we need to stand up and speak out, in particular, since untenured folks need those publications and may feel they can’t afford to challenge publishers in this fashion.
-[Yet] one more thing: In some cases, I pay these “permissions” happily, and consider them access fees. Bizarrely, examining the Beowulf Manuscript in the BL’s MSS Reading Room is free, while they want us to pay to use a photograph of a folio of it when we publish that somewhere. So, in cases where they can’t call them “image fees,” since we might already own the image, I’d like to see them renamed something like “courtesy fees” or, yet more preferably, “optional donations in support of the Library.”
Of course, any lawyer would tell you to read it all yourself, and would note that this blog post of course does not constitute legal advice. But hopefully it is a useful digest of the Code.