Permission Denied… Questions Desperately Seeking Answers

by Christine L. Sundt, University of Oregon

The questions of if and when as well as how to seek permission to use someone else’s creative work are not uncommon with most of us. [1]   Whether a scholar, a curator, a teacher, a critic, a student, or an artist, we face the inevitable fact that permission is usually required if we want to incorporate someone else’s protected creative expression into our own creative endeavor.  This happens in preparing readings for our students, in putting up websites, in organizing exhibitions and writing catalogs, in completing job or course assignments, and certainly in preparing scholarly manuscripts for publication. 

My paper today explores another IF -- what if we asked for permission to use something protected under copyright but our request was denied?  The negative response may have come from the author or artist, from heirs or assignees; it may have been in the form of prohibitively high permission fees or with conditions that could not or should not be met; it may have been the last hope before reaching what seems to be the absolute dead end. 

How do we use the forbidden fruit without also losing Paradise in the process?  What are the risks we face – where is the radar? – and how much can be gleaned from the law that governs and protects intellectual property?  Are there other factors that might reverse the circumstances to our favor?  These are but a few of the questions that I will raise today -- questions for which easy answers are more likely than not unavailable.  Perhaps those who follow me in this session will be able to give us better direction for navigating through this very murky and often threatening region of the law that today seems to govern everything around us.

I will start with a premise that should be familiar if not obvious to all of us:  Permission to quote or to reuse protected intellectual property is essentially the prerogative of the creator of the work who has been granted this privilege through legislation.  In the US this right is granted to authors and inventors in Title 17, the Copyright Law, to exercise control over their creative expression for a ‘limited time’. [2] Today this ‘limited time’ includes several generations of progeny although under earlier legislation, the period for protection had been short, as short as 14 years back in the good old days compared to today’s term for individuals of life plus 70 years. [3]

The law also allows for certain exemptions or limitation to the rights holder’s privileges under the law by way of the doctrine of fair use and the fact that after the time limit for protection expires, the work becomes available to all as the public domain. [4]   The public domain is also the repository for all works ineligible for protection because they do not meet the criteria mandated under the law. [5]   In the most simplistic terms, these exemptions are factors that bring balance between the rights of the creator or owner (including heirs or assignees) and the needs of the user.  This is the balance that the law purports to offer – ideally, that is.

For uses that will be realized in or as a publication, incorporating someone else’s copyrighted property beyond what is permitted under fair use or the tradition of scholarly quotation often depends on receiving an affirmative response – permission to publish. [6]   Publishers routinely require that authors obtain permissions and warranties for all protected work included in the submission before the new work can be published.  Exceptions to this rule are rare and indeed when publication includes the use of images, the author’s workload for obtaining rights escalates as the wallet deflates.  To those of us engaged in the practice and study of art, fair use in publishing seems to be less fair when art images are involved.  In fact, some would argue that fair use does not apply at all and the public domain is more elusive than vaporware.

And yet, based on what we’ve learned in previous NINCH Copyright Town Meetings, [7] we should be able to proceed without always asking for permission and perhaps even after receiving a denial.  So what’s the issue?  Why doesn’t fair use automatically cover our needs – and here I am addressing the needs of the appropriation artist, of non-native scholars wanting to study indigenous art, of researchers who work in foreign countries, of museum curators trying to negotiate with an artist’s estate or rights manager, and of teachers whose institution insist on strict compliance necessitating clearance for all protected materials in use?  Apart from fair use, is there anything else?  What’s in the public domain?  And when does free speech give us a green light to proceed even though we find ourselves surrounded by ominous red lights at all four corners of a dangerous intersection?  Must we always be so risk adverse?

If we take to heart advice offered to authors in the Chicago Manual of Style about obtaining permissions prior to publication, we might assume that all is not lost.  In the 14^th edition, section 4.58 though offered as “a word of practical caution” in a subsection entitled “Fair Use: Quoting Without Permission” we learn that:

…if a use appears to be fair, the author should probably not ask permission.  The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly.  Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative.  Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request establishes that the author feels permission is needed, and the tacit admission may be damaging to the author’s defense. (p.148) [8]

This is indeed good advice, but how often have we been able to exercise it?  Yes, we run the risk of losing a valuable asset in fair use if we don’t practice it, but is the risk of legal action the bigger chill?  To me this sounds like the classic case of being doomed if you do and damned if you don’t!

By now you must have a sense of why copyright questions especially in the arts are so numerous and why we continue to gather to discuss the issues.  Perhaps we run the risk of asking too many questions and expecting simple and straightforward answers.  For me this seems hardly the case.  Perhaps the problem is that we have yet to ask the right questions.

As promised at the outset of my presentation, I will conclude my remarks by raising more questions.  Many of these are based on my own recent publishing experiences and some come from friends and colleagues.  If my only accomplishment this afternoon will be to get these questions on record, I will consider my effort successful.

The Questions:

• If a work of art is clearly in the public domain – let’s imagine for the moment a reasonably well-known (e.g., published) 17^th century painting by an Italian artist – but the museum owing the canvas requires that that a fee be paid before the work can be illustrated in a publication, could the author ignore the requirement and bypass the museum if she already possesses a good quality illustration without publication rights?  In terms of case-law precedents, we have Bridgeman v. Corel that argues in favor of the non-copyrightability of reproductions of public-domain two-dimension artwork. [9]   Should a publisher accept this argument for the absence of a copyright warranty (and here I stress the word “copyright”)?
• Can an author believing that her use of an artwork in a publication is a fair use sign the copyright warranty?  Should a publisher accept an author’s warranty in place of a permission document?  What liability does the publisher assume in accepting the author’s warranty?
• Is the demand for payment of rights and reproduction fees for works that are clearly in the public domain a mechanism for trumping public or federal law in the US through the imposition of private law (state contract and/or license law)?  Are there any penalties or consequences for using state law to override federal law (and denying the privileges granted there under)?
• If artwork in the public domain can be controlled by contract law, are there any ‘fair use’ provisions within that body of law?  Are there mandated term-limits and expiration clauses as in copyright law?  What happens if the contract holder goes out of business or is bought out by another corporation?  How many layers of law or previous ownership claims can attach to a reproduction of an artwork?  Are there any limits?
• Is there a difference between a reproduction of an artwork that is merely a useful article (a faithful representation of a painting, for example) and an artful expression (a Steichen, a Steiglitz, or a Weston photograph)? [10]   How much of the artfully expressive photograph would be covered under copyright if the underlying work illustrated is in the public domain?  This question asks whether the Bridgeman analysis might also apply to three-dimensional art reproductions.
• Can a museum control the way an art object in their collection is illustrated -- whether it is cropped or altered or colorized or manipulated?  How much can it control and under which domain of the law is this power conveyed?  Does that power carry greater weight than free speech, first amendment rights, or innate creativity in the US?
• Technology has made it easier to keep track of rights so another new area of control is with artists’ estates and the request for royalties in addition to permission grants.  Should we assume that all artists’ heirs have the right to claim royalties?  What proof should we ask of them before agreeing to make payments or adhere to conditions?  Depending on where the artist enjoyed domicile or citizenship, could an artist’s moral right continue in perpetuity?

I have kept my promise of questions – probably more than you hoped to hear – and perhaps more biased toward user rights than some might want.  In all fairness we must ask these questions because of recent legislation and decisions – DMCA and Eldred v. Ashcroft come to mind – that have been decided in favor of increased control for owners with fewer benefits for the common user.  So in conclusion, I will repeat: have we been asking the right questions?  I fear that if we don’t ask, we surely won’t get what we need. [11]   However, I also fear that the farm may already be history – that after the dust settles and the corporate smoke clears there might not be much left to the concept of users’ rights in the digital world.  With this dark and gloomy image now etched in your psyche, I thank Robert Baron and David Green for giving me this opportunity to be part of today’s panel.

(11 February 2003 draft version)

Eugene, Oregon