Protection and Control of Museum Images in
Education
Straddling the Not-So-Bright Line Between Necessity and Infringement
presented May 21, 2003, American Association
of Museums (AAM Annual Meeting 2003)
Portland, OR
Christine L. Sundt, University of Oregon
Copyright & Art
Issues
My Goals:
- Provide background for academic practices
- Look at museums’ educational goals
- Examine the causes of conflict between practice and tradition, the
law and museums
- Offer ideas for expanding and promoting AAM’s educational
mandate
Purpose and Uses of Images
- To teach
- To inspire
- To illustrate
- To supplement
- To review
- To enhance
- To display
- To promote
- To share
- To decorate
How images are acquired -
- From artists/creators or galleries/agents
- From museums
- From vendors or licensors
- From catalogs and books
- By photographing on site
- Through bequests and donations
Museums as educational institutions (Excellence
and Equity: Education and the Public Dimension of Museums)
- “Assert that museums place education…at the center of
their public service roles.” (#1)
- “Engage in active ongoing collaboration efforts with a wide
spectrum of organizations and individuals who can contribute to the
expansion of the museum’s public dimension.” (#6)
- “Commit leadership and financial resources—in individual
museums, professional organizations, and training organizations and
universities—to strengthen the public dimension of museums.”(#10)
The view from the trenches
Art historical practices and traditions: The ties with museums and the
Copyright Law
Museums as responsible protectors
- Access may be regulated by copyright but more often it is contract
and/or property law that rules
- The laws are complex and cumbersome – a bundle of rights and
many generations of owners
- Revenue issues take precedence over goodwill in the real world
Where the law assists education
- The constitutional mandate
- Privileged use
- Special exemptions
- Codification of fair use
- TEACH Act
- Guidelines
Where education and copyright collide
- Limitations with exemptions
- Creativity vs. preparedness
- Images as integral entitles
- Lawfully viable?
- Cumbersome processes
- Discord through criticism
More collisions
- Fair use is not warm and fuzzy
- The public domain as the great unknown
- The consequences of the K-12 ‘cut & paste’ curriculum
- Appropriation as an expression of honor
- Technology & the instant copy
- Licensing and contracts
- The disappearing public domain
Educational scholarship: The facts
- How much is actually ‘published’?
- Scholarship IS mandated, not just an option
- Color images are seldom possible in low-budget scholarly publications
- An educator is unlikely to reap profits from scholarly publishing
- Scholarly publishing is a ‘limited edition’ when compared
to commercial publishing
More facts
- Small market + high costs = diminishing audience
- Value added through scholarship should be properly compensated
- Limitations on use are disproportionate to value derived from exposure
and discourse
- AAM’s educational mandate must be revisited
The shrinking world of resources
- Services being abandoned:
- - Slide sales
- - Bookstores
- - Lending libraries & collections
- Digital is just another technology, not a replacement for everything
- High costs associated with technology do not go away
And still more shrinking…
- Community outreach is replacing services to research and scholarship
- When does control threaten access?
- Usage rights are more complex under today’s laws
- Images are proliferating on the Web, but the ‘look, but don’t
touch’ rule can cause confusion and frustration
Museums’ fears
- Images will be lost forever if they are freely available
- The promised revenue stream from images may never be realized
- Museums will not be able to protect their interests and act responsibly
- Attendance will suffer if images are too readily accessible
Controls and balances
- Piracy and any other unauthorized exploitations can and should be
litigated
- Fair use, especially in education, is not piracy, even though the
user must ‘take’ something in order to use it
- Images of artwork in the public domain should not be subject to
the same controls as work still under copyright
- Museums must work together to create an equitable & fair method
for protecting their interests without disabling access for educators
and scholars
- The art ‘experience’ is still more thrilling than looking
at a digital substitute
A proposal to assist in requesting permissions – a ‘fair
use’ test
- Developed by Tom Bower, National Museum of American History, for
the CAA/NINCH Copyright Town Meeting, Chicago, 2001
- Available for examination online at http://www.pipeline.com/~rabaron/CIP/CAAdoc2.htm
- Recently offered to the AAMD for review by Patricia Failing, Chair,
Committee on Intellectual Property, College Art Association
Final thoughts
- Try to distinguish between true creativity and hard-core exploitation
- Raise the bar for commercial uses to cover & eliminate costs
for education and scholarship
And finally…
- Re-examine the ‘Excellence and Equity’ mandates to look
for ways to encourage access in the name of education even though
some risk is involved
Links, News, and Views:
Copyright
& Art Issues, compiled by Christine L. Sundt
