Protection and Control of Museum Images in Education:	
Straddling the Not-So-Bright Line Between Necessity and Infringement
(presented at the American Association of Museums conference, Portland, OR, May 21, 2003)

Christine L. Sundt, University of Oregon
Copyright & Art Issues
http://uoregon.edu/~csundt/copyweb/

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 share
•	To promote
•	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
•	“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:

Edited by Christine L. Sundt
http://uoregon.edu/~csundt/copyweb/
Email address:
csundt@darkwing.uoregon.edu

Credits
•	www.yale.edu/arthistory/courses/ courses_homepage.html
•	http://www.jyu.fi/taidehistoria/english/ An Art History lecture in the big lecture hall (JT 120) in Juomatehdas  
•	www.unm.edu/~medinst/ photos/bobo_1_th.jpg Institute for Medieval Studies University of New Mexico, Albuquerque, NM 87131-0001
•	http://www.aber.ac.uk/media/Documents/S4B/sem09.html
•	http://www.hatii.arts.gla.ac.uk/old/Labs/DigiClassroom2girls.JPG The Humanities Advanced Technology and Information Institute
•	http://condor.depaul.edu/~gallery/Web%20Page%20Design.1%20copy.JPG
•	http://www.history.ox.ac.uk/hoa/
•	Museum News advertisement: Maltbie, Women’s Museum