IMAGES USED IN TEACHING AND RESEARCH

The visual resources collection, known variously as an image collection, image archive, slide collection, or slide and photograph collection, has been growing and evolving in North American educational and cultural institutions since the early days of photography. Some of the earliest documented collections, started between the 1880s and 1900, include the Art Institute of Chicago, the Massachusetts Institute of Technology, Princeton University, the University of Michigan, the University of Illinois, and the American Museum of Natural History. Footnote1 Visual collections within these institutions are repositories of images used primarily for teaching and secondarily for research. They exist in a variety of formats that have been acquired over many years from myriad sources. They cover seemingly limitless topics typically in the arts, humanities and social sciences.

The arts, e.g., visual arts, art and architectural history, are wholly reliant on the availability and use of images. For instruction, it is not unreasonable for an instructor preparing an art history course, for example, to use more than 100 images in one lecture. With the typical pattern of three lectures per week, times the sixteen weeks in a standard semester, 4,800 slides could be used by a single faculty member. At the University of Oregon, annual statistics for 1993-94 indicate that 40,213 slides were used by the art history faculty, and overall, more than 82,000 were used by all departments during the year. Images so used are often those illustrated in text and trade books, or in specialized scholarly journal articles, commonly included in the readings assigned for the course. A small percentage of these images are available through commercial vendors, with plans, maps, diagrams, and non-mainstream art and architecture being the images least likely to be available through these commercial channels.

Their use in teaching is straightforward. These images are projected or displayed in the classroom to illustrate concepts or to define and describe terminology embodied in the art or architectural object. Images used in lectures are often chosen not for their photographic merit, but rather for their ability to make a point. As a result, instructors sometimes favor using less than spectacular images in lectures (often to the consternation of students), even though a more photogenic rendition of the object is also available in the visual resources collection.

Image archives amassed over decades are anything but static collections. Despite the fact that images fade, can be easily damaged, or are lost by irresponsible users, it seems clear that there is more importance placed on what the image represents than on who produced it or what its physical condition is. Furthermore, image collections are notorious, perhaps out of ignorance on the part of those who administer them, for not retaining source information for images acquired. This practice is gradually changing, although there are many collections for which the only documentation available is the description of the artwork or architecture represented. Likewise, when used in teaching, the image is less significant for who created it than for what it illustrates. It is a tool for teaching; its creator or source is transparent and, most of the time, unimportant to the teacher and her students.

It is not uncommon for images appearing in even the most basic textbooks to be unavailable from commercial vendors. While a substantial body of images are sold commercially, Footnote2 still many more, such as plans, maps, diagrams, reconstructions, and the like, are not. Furthermore, it is often impossible to determine if an image is available from a commercial source because reference tools or indexes to images currently do not exist. It is also important to recognize that the use of images in teaching art and architectural history is not gratuitous. Images are used as the basis for discussion, criticism, comment, and reporting. Without images, the teaching of these disciplines would be impossible.

Because the use of images in teaching and research has been taken for granted for more than half a century, the mechanisms for regulating their use as well as for determining ownership of images have not been developed. Early literature seldom identifies the creator of the image and in some cases, copyright is not mentioned for images used within a text. Footnote3

Images used for instruction or in teaching have similar problems. Images made from reproductions or even photographed directly from the object (artwork or architecture) would most likely be considered "unpublished works" under the Copyright Act of 1976 (17 U.S.C.) unless they have been published, performed, or publicly displayed according to provisions outlined in the law. Furthermore, few if any images automatically fall into the public domain, even though the process of reproducing images is more of a mechanical technique than a creative expression, and the subject of the reproduction is often itself in the public domain. The duration of copyright protection will differ depending on whether the work is published or not. Charts outlining copyright duration over time and through legislative changes are readily accessible. Footnote4 These, however, appear to be more useful for published rather than unpublished work. Furthermore, it is obvious that mechanisms used for determining copyright for text lose their tidiness when applied to images. There are many questions regarding images and copyright that are still unanswered and may remain so until test cases provide sufficient legal guideposts for subsequent analyses.

IMAGES USED BY STUDENTS, THEIR TEACHERS, AND OTHERS: APPROPRIATION

Visual collections as repositories of images are often regarded as the logical source for images that can be used for any and all purposes. While access to archived images is often restricted to certain controlled uses, such as providing images for display in the classroom or allowing researchers to study the images, curators are often asked to accommodate other uses that go beyond traditional practices. Some of the more common non-traditional needs for visual materials include making additional copies of collection slides for someone's personal use; reproducing slides for use in small-run brochures and posters; allowing the slides to be reproduced in local publications or displayed in campus-sponsored public performances; letting students use slide images as the basis for an art project; and more frequently today, supplying images for inclusion in scholarly literature. To the visual resources curator, these uses are problematic because of copyright questions, such as whether an image reproduced from a book or journal article under a fair use argument can be further reproduced, or whether slides acquired from commercial vendors with the stipulation that they not be reproduced or used commercially can be offered for any of these other uses without some sort of prior authorization.

Increasingly, people want to use images in many more ways than in the past. Whether we can blame this phenomenon on television or not, we must address the changing needs of education in a world where the image has become more powerful than text and an obsession to many. The image is necessary for communication and few will be able to understand why image collections are so restrictive when it comes to how collection images can be used.

Another growing area of concern related to free and unrestricted access to images is the practice of appropriation. Appropriation of images is a common practice that has a long and important history in the study of art. Byzantine artists relied on formulae and repetition, borrowing freely from revered models in creating "new" images. In Chinese art there is a long tradition of copying the works of earlier masters as a form of homage to their greatness. Flemish artists borrowed and freely used "quotations" from works of their teachers and other acclaimed masters within their new creations. Another long-standing practice -- copying the works of old masters -- is still much in evidence in art curricula throughout the world. Students of art making literal copies of masterpieces may be found at work, even today, in most major museums. During the first quarter of this century, Dada artists took this tradition a few steps further: they created works collectively, building on each others creations, altering or adding freely and without worry about whose rights were being imperiled by these actions. These practices continue today as appropriation art becomes more popular and accepted within the art community, while at the same time raising significant issues regarding copyright ownership, fair use, and the like.

Another manifestation of appropriation occurs in scholarship. In what appears to be another long-standing practice, scholars -- not to mention students --frequently reuse an image published earlier by simply citing its source, or by noting the published basis or inspiration for the their new contribution to scholarship. Footnote5 This is a practice that is recognized internationally by scholars as a reasonable use of previously published materials.

Recognizing that time and customs change in response to new requirements and challenges and basing this proposal on the description of traditions, curricular requirements, and reasoning included in the above, I offer the following examples of what one visual resources curator hopes will be to all concerned parties acceptable fair uses practices involving images:

• Making an image for classroom use from reproductions in copyrighted printed matter without permission, especially when suitable photographic reproductions are not available through commercial vendors specializing in art or art historical images (Painting of Mona Lisa within reconstruction of original frame, published in an article on 16th-century frames)
• Using images Footnote6 in a course assignment, or in fulfillment of degree requirements, such as a term paper, thesis or a dissertation (Mona Lisa in a term paper for Art History 202, "Mona Lisa = Leonardo da Vinci?")
• Incorporating images in new creative works as a course assignment in an accredited academic institution (Mona Lisa by Leonardo da Vinci, transformed into "Mona Lisa the Morning Before" [Mona Lisa in a hairdresser's chair, looking into a mirror])
• Reproducing images for use in derivative works for which there is no real commercial value or financial gain for either the creator of the original image or the creator of the derivative work (Mona Lisa illustration, from a book catalog, incorporated into a name tag designed to look like a frame)
• Using images of public domain artworks or architecture freely (without written permission), even though the maker of the reproduction is identifiable (Mona Lisa: photographed by a fellow student during our trip to Paris in 1975; we had copies made and shared these with our friends. I subsequently donated my copy to the university's visual archive)
• Using images as illustrations in a scholarly presentation or lecture to a specialized audience (showing the Mona Lisa as an example of Leonardo da Vinci's portraits of women at a session on Renaissance women during the annual CAA conference)
• Using a reasonable number of previously published images to expound an idea or argument in scholarly writings, such as articles or books, written for a small, specialized scholarly audience (Mona Lisa by Leonardo da Vinci, illustrating the smile in Renaissance portraiture, in an article submitted for publication in the Art Bulletin)
• Reproducing pre-1977 published images lacking copyright notices as well as any other means to identify a photographer or creator of the image (early photographs of Mona Lisa that appear in countless early journals and books)

Footnote1

See B. J. Irvine, Slide Libraries: A Guide for Academic Institutions, Museums, and Special Collections, 2nd edition, Libraries Unlimited, 1979, p. 25, for additional names of institutions dating from this period.

Footnote2

See the Slide Buyers Guide, 6th edition, edited by Norine Cashman. This publication, now sponsored by the Visual Resources Association, was first distributed by the College Art Association, Commercial Slides Committee. Nancy DeLaurier was the editor of the first edition in 1972.

Footnote3

John Rewald, The History of Impressionism, New York: The Museum of Modern Art, 1946. The copyright notice appearing on the verso of the title page reads: "Copyright 1946, The Museum of Modern Art, 11 West 53 Street, New York 19, N.Y." On p. 434, "Sources of Illustrations" includes a list of image providers who are in fact the owners of the artworks illustrated (private collectors). Also included is a list of illustrations "made after reproductions in books, periodicals, catalogues, etc." None of the figures indicate copyright, nor is copyright mentioned with respect to the list of sources.

Footnote4

See Robert A. Gorman and Jane C. Ginsburg, Copyright for the Nineties: Cases and Materials, third edition, Charlottesville, VA: The Michie Company, 1989, p. 275, for a table describing duration of copyright relevant to the transition from the 1909 to the 1976 Copyright Act. According to this chart, works "[c]reated, but not published, before 1978" are protected upon creation, and this protection lasts for a "Unitary term of at least life + 50, earliest expiration dates 12/31/2002 (if work remains unpublished) or 12/31/2027 (if work is published by the end of 2002)."

Footnote5

In the article, "Likeness of No One: (Re)presenting the First Emperor's Army," by Ladislav Kesner, Art Bulletin, LXXVII:1 (March 1995), all of the illustration derive from other sources, including one comparative illustration of Queen Nefertiti, "from The Egyptian Museum in Berlin, Berlin, 1990, 97."

Footnote6

"Images" here and hereafter will assume that these are from any source or in any format. While I have used Leonardo's Mona Lisa as the basis for my examples, I am not limiting my arguments to art in the public domain. Artworks from all period, through the modern, should be assumed as equally applicable, unless otherwise indicated. The images are also assumed to be protected by copyright unless otherwise noted. These are being used without expressed, written permission from the copyright owner.

The views expressed in this paper are my own. I do not speak for the University of Oregon nor for any other organization with which may name may be associated.

This is the original version of the paper posted on July 1, 1996.