Copyright & Art:
Issues that Matter to Creators and Users

A little bit of background about this site: why copyright, why art? The reasons are many and deep.

I started this site in 1996 as a place for my students to access readings and online content about copyright for a course on Visual Resources Management, which I taught at the University of Oregon. This was an experimental course at the UO based on my long involvement with similar content offered as workshops from 1983 to 1997, which I taught with my colleague Nancy Schuller at the University of Texas at Austin and before that with Nancy DeLaurier at the University of Missouri-Kansas City.

Copyright was one of the topics covered in the workshops and later in my course because it was and still is a vital facet in knowing how to manage and use visual resources, especially when they represented art, architecture, and visual culture as slides, photographs, and digital images. Copyright and the arts has also been a personal focus and interest because I am trained as an art historian (as a user of copyrighted works and a creator of new context for them). I also apply my art historical training as an editor of Visual Resources: An International Journal of Documentation (as a manager of others' copyrights). And I am a jewelry artist—clsjewelry.com (a creator and owner of copyrights). I have also had the good fortune to be part of several important copyright initiatives: representing the College Art Association (CAA) during the CONFU deliberations, being part of a roundtable discussion again representing CAA during the "orphan works" hearings, and more recently being part of the development of the Visual Resources Association's Statement on the Fair Use of Images for Teaching, Research, and Study.

I have always believed that education is at the root of our understanding of copyright: what we know can inform us about what we do. This website aims to educate readers who have questions and who have yet to find reasonable answers. For some questions, answers are anything but settled. I invite you to explore this site and to become engaged in our quest for answers.

Christine L. Sundt
Eugene, Oregon

Public Domain

Copyright's term of protection and coverage has changed over time affecting when works enter the realm of the public domain. Tom Bell's chart (above) illustrates how this works by showing colors on a grid to indicate the laws in effect over time, the span of years covered by the laws, and the duration of time awarded by each change in the law. [By Vectorization: Clorox (diskussion), Original image: Tom Bell. (Image:(C) Term by Tom Bell.gif) [CC-BY-SA-3.0 (www.creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons]

Public Domain Art in an Age of Easier Mechanical Reproducibility, by Kenneth Hamma -- argues "that making visual reproductions of public domain art works available for use and reuse without charge would likely benefit the collecting institutions and would contribute to the public good." An interview with Hamma for Educause: http://www-cdn.educause.edu/sites/default/files/2006/12/CNI_F2006_KEN_HAMMA.mp3

Copyright Term and the Public Domain in the United States, by Peter Hirtle -- "begun as an expanded version of Lolly Gasaway's copyright chart, but with the primary focus on unpublished works. In this new version, the section on unpublished works has been updated to reflect copyright status as of 1 January 2004. A new section on the U.S. copyright status of works published outside of the U.S. has also been added. In order to facilitate printing, a PDF version of the file is available as well, and several new alternative copyright charts are listed in footnote 1."

Tales from the Public Domain: Bound by Law? by Keith Aoki (1955-2011), James Boyle, and Jennifer Jenkins -- a comic book written by Boyle and Jenkins and illlustrated by Aoki, a talented cartoonist, musician, arts advocate, humanist, professor (and mentor), and expert in intellectual property, civil rights, critical race theory, local government law, globalization, and critical theory. A publication under a Creative Commons License of the Center for the Study of the Public Domain at Duke Law, this graphic novel presents copyright law with a comic twist - perhaps the kindest way for most of us to penetrate its complexities and quirks.

The Public Domain: How to Find Copyright-Free Writings, Music, Art & More, by Stephen Fishman (560 pages, 2000)

Copyfraud: False copyright claims are more common than you think (Public Domain Sherpa)

Center for the Study of the Public Domain at Duke Law School "is the first university center in the world devoted to the other side of the picture.  Founded in September of 2002, as part of the school's wider intellectual property program, its mission is to promote research and scholarship on the contributions of the public domain to speech, culture, science and innovation, to promote debate about the balance needed in our intellectual property system and to translate academic research into public policy solutions." 

Public Domain Information -- at the Copyright Website, by Benedict O'Mahoney

Public Domain chart (Laura Gasaway)

Eldred v. Ashcroft -- an interesting case involving public domain works and retroactive extention of the term of copyright by way of the recently enacted Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 ("CTEA"), amending 17 U.S.C. 304(b)]. More at Openlaw. Among the many 'friends of the court' legal filings opposing the the term extension act is: College Art Association, Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers and National Initiative for a Networked Cultural Heritage, prepared by Jeffrey P. Cunard, Bruce P. Keller, Christopher J. Robinson, and Rebecca Tushnet. See more at http://eon.law.harvard.edu/openlaw/eldredvashcroft/legal.html#amici The transcript of the October 9, 2002, oral arguments before the Supreme Court is available as a PDF file at http://www.supremecourt.gov/oral_arguments/argument_transcripts/01-618.pdf

Why the Public Domain is Not Just a Mickey Mouse Issue, a paper by Diane M Zorich, presented at the Chicago Historical Society, January 11, 2000

Works Not Covered by Copyright, Citizen Media Law Project, hosted by Berkman Center for Internet & Society at Harvard University

Bridgeman v. Corel

The Bridgeman Art Library, LTD, Plaintiff, v. Corel Corporation, et ano., Defendants, United States District Court, Southern District, New York (25 F.Supp.2d 421), November 13, 1998 original decision. The decision ruled that exact photographic copies of two-dimensional public domain artwork lacks originality and cannot be protected by copyright in the United States.

The Bridgeman Art Library, LTD, v. Corel Corp., United States District Court, Southern District, New York (36 F.Supp.2d 191), 1999 rehearing

Excerpts from April 1999 American Association of Museums Annual Meeting Presentation, "What's Hapening in Washington," Barry G. Szczesny, Esq., AAM Government Affairs Counsel. (Keep up with the RARIN wiki at http://www.rarin.org/index.php/Main_Page)  

A later case: Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., Grace & Wild, 3D Recon, Saatchi & Saatchi North America (June 17, 2008), p. 18, citing Bridgeman v. Corel and others: "See also ATC Distr. Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005) (denying copyright protection to catalog illustrations of transmission parts "copied from photographs cut out of competitors' catalogs"); Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999) (denying copyright protection to photographs that were "'slavish copies' of public domain works of art"); Mary Campbell Wojcik, The Antithesis of Originality: Bridgeman, Image Licensors, and the Public Domain, 30 Hastings Comm. & Ent. L. J. 257, 267 (2008) ("[T]he law is becoming increasingly clear: one possesses no copyright interest in reproductions . . . when these reproductions do nothing more than accurately convey the underlying image.")

Who Owns this Image? Art, Access and the Public Domain after Bridgeman v. Corel, reported by Gretchen A. Wagner, General Counsel of ARTstor: "On April 29th, (2008) the College Art Association, the New York City Bar Association Art Law Committee, ARTstor, Creative Commons, and Art Resource co-sponsored an event entitled "Who Owns this Image? Art, Access and the Public Domain after Bridgeman v. Corel." The event included an afternoon symposium, with about 40 participants, and an evening panel session, with about 400 people in attendance." Read the report at http://www.artstor.org/news/n-pdf/who-owns-image.pdf and Rebecca Tushnet's 43(B)log "Bridgeman v. Corel, 9 years on" (April 30, 2008) at http://tushnet.blogspot.com/2008/04/bridgeman-v-corel-9-years-on.html

 

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Christine L. Sundt's Papers and Presentations

Fair Use of Images in the Classroom: How Far is Fair?, presented in the session, Fair Use; Who Has the Rights?, College Art Association annual conference, Seattle, WA, February 2004.

Protection and Control of Museum Images in Education: Straddling the Not-So-Bright Line Between Necessity and Infringement, presented in the session Protecting Museum Images in the Digital Age at the American Association of Museums annual meeting, Portland, OR, May 21, 2003 [PowerPoint version; Presentation Outline (rich text format); Review by Tracy Lauritzen Wright in SERA [Southeastern Registrars Association] News, Volume 25, Issue 3 (Summer 2003), pp.4, 5, 11]

Permission Denied... Questions Desperately Seeking Answers, presented at the NINCH Copyright Town Meeting, New York, NY, in conjunction with the annual meeting of the College Art Association, February 19-23, 2003

BEEN THERE, DONE THAT! The State of the Question Regarding Copyright, Fair use and Intellectual Property in the Arts, presented at the NINCH Town Meeting, New York, NY, in conjunction with the annual meeting of the College Art Association, February 23-26, 2000

The CONFU Digital Image and Multimedia Guidelines: The Consequences for Libraries and Educators. A version of the paper presented April 4, 1997, at "Fair Use, Education, and Libraries: A Town Meeting to Examine the Conference on Fair Use", Indianapolis, Indiana, on the campus of Indiana University Purdue University at Indianapolis ("IUPUI")

Comments on "THE GREEN PAPER" - INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, July 1994

Visual Resources Advocacy Statement - PART I : Traditional Formats and Practices
IMAGES USED IN TEACHING AND RESEARCH;
IMAGES USED BY STUDENTS, THEIR TEACHERS, AND OTHERS: APPROPRIATION

Visual Resources Advocacy Statement - PART II : New Technologies and Images (also in Ukrainian; translation by Vlad Brown)
THE TRANSITION FROM ANALOG TO DIGITAL:
IMAGES IN EDUCATION AND SCHOLARSHIP AND THE VISUAL RESOURCES COLLECTION

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Document Sources

U.S. Copyright Office, Library of Congress

U.S. Copyright Law (Title 17), Cornell University's Legal Information Institute

Constitution, Statutes, Codes

State Governments, Laws and Documents

Copyright Act of 1909

U.S. Copyright Case Law: Wikisource Portal

International Copyright: Wikisource Portal

Statute of Anne (1710 facsimile; British Library, 8 Anne c. 19.)

National Copyright Legislation, UNESCO's "free access to national legislations on authors rights and neighbouring rights"

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Guidelines and Policies

(see also FAIR USE BEST PRACTICES)

CONFU

The CONFU (Conference on Fair Use) guidelines (as proposed):

Proposal for Fair Use Guidelines for Educational Multimedia developed by CCUMC
Proposal for Fair Use Guidelines for Distance Learning
Proposal for Educational Fair Use for Digital Images

Other guidelines drafted during the proceedings (subsequently abandoned)

Fair-Use Guidelines for Electronic Reserve Systems, March 5, 1996 (prepared by the CONFU Electronic Reserves Drafting Sub-Group)

 

Early Guidelines and Agreements

Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, March 1976 (developed and approved by the Ad Hoc Committee on Copyright Law Revision, Author-Publisher Group and Authors League of America, Association of American Publishers, Inc.)

Guidelines for Educational Uses of Music, April 1976 (developed and approved by the Music Publishers' Association of the United States, Inc., the National Music Publishers' Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the Ad Hoc Committee on Copyright Law Revision)

Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes, October 1981 (developed and approved by the Negotiating Committee appointed by Congressman Robert Kastenmeier, chairman of the House Subcommittee on Courts, Civil Liberties, and Administration of Justice, which included representatives of education organizations, copyright proprietors, and creative guilds and unions)

 

Guidelines, Policies, Best Practices from Organizations and Institutions

(see also Fair Use Best Practices)

AMERICAN LIBRARY ASSOCIATION

• Library and Classroom Use of Copyrighted Videotapes and Computer Software, February 1986 (prepared by Mary Hutchings Reed and Debra Stanek for The American Library Association)
• Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use, March 1982 (prepared by The American Library Association)

ARL et al.

• Principles for Licensing Electronic Resources, July 15, 1997 (Association of Research Libraries, with American Association of Law Libraries, American Library Association, Association of Academic Health Sciences Libraries, Medical Library Association, and Special Libraries Association)

BALL STATE UNIVERSITY

• Guidelines for Copyright Compliance and Copyright Agent Contact Information

CSU-SUNY-CUNY

• Fair Use of Copyrighted Works (CSU-SUNY-CUNY Joint Committee, Consortium for Educational Technology for University Systems )

CARNEGIE MELLON UNIVERSITY

• Copyright Policy of Carnegie Mellon University, originally issued to campus on February 22, 1995, as a presidential policy memo. "This policy presents Carnegie Mellon University's criteria for legitimate copying of copyrighted materials by university faculty and staff within the purview of the Copyright Act."

COPYRIGHT SOCIETY OF THE U.S.A.

• Copyright Kids, a site designed to address copyright questions and issues affecting today's children: "an educational resource on copyright issues for teachers and parents of 5th - 8th graders who are engaged in a creative process."

CORNELL UNIVERSITY

• Checklist for Conducting a Fair Use Analysis Before Using Copyrighted Materials - (Revised for use by Cornell University from “Checklist for Fair Use,” a project of the IUPUI Copyright Management Center, directed by Kenneth D. Crews, Associate Dean of the Faculties for Copyright Management)

EDUCOM: Educational Uses of Information Technology (EUIT) Program

• Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community, January 1992 (produced as a service to the academic community by the Educational Uses of Information Technology Program (EUIT) of EDUCOM and the Information Technology Association of America (ITAA)

INDIANA UNIVERSITY INSTITUTE FOR THE STUDY OF INTELLECTUAL PROPERTY AND EDUCATION

• Policy on Fair Use of Copyrighted Works for Education and Research Statement of Supporting Principles [prepared by the Institute's Advisory Board, under the direction of Kenneth D. Crews; approved December 5, 1997]

NATIONAL HUMANITIES ALLIANCE

• National Humanities Alliance, "Basic Principles for Managing Intellectual Property in the Digital Environment" March 24, 1997 document
• SOCIETY OF AMERICAN ARCHIVISTS' RESPONSE TO NHA PRINCIPLES (via NINCH)

OCLC

• Well-intentioned Practice for Putting Digitized Collections of Unpublished Materials Online (May 28, 2010)

SOCIETY OF AMERICAN ARCHIVISTS

• Orphan Works: Statement of Best Practices (January 12, 2009; rev. June 17, 2009)

TRIANGLE RESEARCH LIBRARIES NETWORK

• Intellectual Property Rights Strategy for Digitization of Modern Manuscript Collections and Archival Record Groups (January 2011) [prepared by Laura Clark Brown, Judy Ruttenberg, and Kevin L. Smith, J.D.

UNIVERSITY OF GEORGIA SYSTEM

• Regents Guide to Understanding Copyright and Educational Fair Use

UNIVERSITY OF TEXAS

• The basic University of Texas System Policy regarding the use of copyrighted materials
• Fair Use of Copyrighted Materials [More from the pen of Georgia Harper at the University of Texas System, including "Rules of Thumb for Digitizing and Using Images for Educational Purposes"]
• The Copyright Crash Course

VISUAL RESOURCES ASSOCIATION

• Image Collection Guideline: The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections
• Digital Image Rights Computator (DIRC)
• Copy Photography Computator (for assessing the layers of rights in an image)
• Model Agreements for the Use of Donated Images and Image Collections by Educational and Cultural Organizations

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Useful Websites

COLUMBIA UNIVERSITY: Copyright Advisory Office (sections covering Copyright in General; Fair Use; Libraries and Copyright; Copyright Ownership; Permissions; Special Topics, including Google Settlement)

UNIVERSITY OF MARYLAND UNIVERSITY COLLEGE Center for Intellectual Property: Current Issues and Resources

University of Texas System (Georgia Harper)

10 Big Myths About Copyright Explained (Brad Templeton)

Princeton vs. MDS (The complete analysis by Kenneth Crews, The MDS Decision and Fair Use for Coursepacks)

Art, Copyright, and the Web Bibliography (compiled by Jeanette Mills and Cynthia Caci)

IFLA Copyright Bibliography (including copyright legislation from foreign countries; as last reported in November 2006 and now only accessible through the Wayback Machine)

VRA Copyright Page (Visual Resources Association)

Robert A. Baron, Papers on Copyright and Intellectual Property

Licensing Images:

• Artists Rights Society, Inc. (ARS). (Dr.) Theodore H. Feder, President, 65 Bleecker Street, New York, NY 10012. Phone number at ARS is 212/420-9160; fax is 212/420-9286.
• Visual Artists and Galleries Association, Inc. (VAGA), 111 Broadway - Suite 1006, New York, NY 10006. The telephone number is 212/736-6666; fax number is 212/736-6767; Robert Panzer is the Executive Director. E-mail: info@vagarights.com

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Miscellaneous

Books and Articles

The Fair Use/Fair Dealing Handbook, by Jonathan Band and Jonathan Gerafi. policybandwidth, April 2013. "This handbook contains the fair use and fair dealing statutes .... The handbook does not include the many implementations of the exceptions for quotations and illustration in Article 10 of the Berne Convention, which refers to 'fair practice.' Fair practice under Article 10 is a distinct concept from fair use or fair dealing. The handbook also does not include the myriad specific exceptions countries have enacted in addition to fair use or fair dealing. Finally, the handbook does not contain exceptions that appear to be inspired at least in part by fair use or fair dealing, but do not employ those terms."

"Copyright, Museums, and Licensing of Art Images," by Melissa A. Brown and Kenneth D. Crews (2011):

• “Control of Museum Art Images: The Reach and Limits of Copyright and Licensing” - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542070
• “Art Image Copyright and Licensing: Compilation and Summary of Museum Policies” - http://academiccommons.columbia.edu/catalog/ac:128159
• “Art Image Copyright and Licensing: Terms and Conditions Governing Reproduction and Distribution” - http://academiccommons.columbia.edu/item/ac:128142
• “Art Image Copyright and Licensing: Terms and Conditions Governing Appearance and Composition of Images” - http://academiccommons.columbia.edu/catalog/ac:128152
• “Art Image copyright and Licensing: Terms and Conditions Governing Third Party Rights” - http://academiccommons.columbia.edu/catalog/ac:128156
• “Art Image Copyright and Licensing: Bibliography” - http://academiccommons.columbia.edu/catalog/ac:128146

Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, by Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon (Ithaca, NY: Cornell University Library, October 2009) ISBN 978-0-935995-10-7

"Moral Rights for Artists: The Visual Arts Rights Act," by Jeffrey P. Cunard, published in CAA News, Volume 27, Number 3 (May/June 2002), p. 6-8. An excellent overview of the legislation and how it applies or doesn't to artforms that fall outside traditional boundaries, for example, mixed-media and multimedia. A must-read!

A Guide to Copyright for Museums and Galleries, by Peter Wienand, Anna Booy, and Robin Fry (New York & London: Routledge, 2000). Especially useful for the UK perspective. A collaborative project supported by The Scottish Museums Council, the Museums Copyright Group, and the Museum and Galleries Commission

Who Owns Pooh?, by Laura Bradford, in Time Magazine, Vol. 160, no. 3. Court battles over 'digital rights' conclude that each new use of copyrightable materials requires a new contract -- a benefit to artists and a headache to publishers.

Copyright, Borrowed Images and Appropriation Art: An Economic Approach, by William M. Landes, in Chicago: John M. Olin Law & Economics Working Paper No. 113 (2d Series)

Pamela Samuelson, "The Copyright Grab." Wired 4.01 (January 1996)

David W. Stowe, "Just Do It. [How to beat the copyright racket]," Lingua Franca, Nov./Dec. 1995, 32-42

Technology and copyright law : a guidebook for the library, research, and teaching professions / Arlene Bielefield and Lawrence Cheeseman

From Monty Python to Leona Hemsley: A Guide to the Visual Artists Rights Act, by Cynthia Esworthy, NEA Office of General Counsel, JD Washington & Lee Law School 1997

Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property, by Susan M. Bielstein (Chicago & London: The University of Chicago Press, 2006) ISBN 0-226-04637-0 (cloth) and 0-226-04638-9 (paper)

The New Gatekeepers: Emerging Challenges to Free Expression in the Arts, edited by Christopher Hawthorne and Andras Szanto with Mark Schapiro and Jeremy Simon, New York: National Arts Journalism Program, 2003, ISBN 0-9746383-0-7

Dear Images: Art, Copyright and Culture, edited by Daniel McClean and Karsten Shubert, London: Ridinghouse/ICA, 2002,ISBN 1-900300-37-0 (ICA), ISBN 0-9541710-2-0 (Ridinghouse), review © Henry Lydiate 2003

The Future of Ideas: The Fate of the Commons in a Connected World, by Lawrence Lessig (352 pages, 2001) (ISBN: 0375726446)

Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, by Siva Vaidhyanathan, (288 pages, 2001) (ISBN: 0814788068)

The Digital Dilemma: Intellectual Property in the Information Age, Committee on Intellectual Property Rights in the Emerging Information Infrastructure, National Research Council (364 pages, 6 x 9, 2000)

A Museum Guide to Copyright and Trademark, by the American Association of Museums, Coauthors: Michael S. Shapiro, Brett I. Miller, Morgan, Lewis & Bockius LLP, Edited and introduced by Christine Steiner (PAPER 225PP. 1999 · ISBN 0-931201-63-2)

"Perspectives on Fair Use, Education, and Libraries," Journal of the American Society for Information Science, Volume 50, Number 14 (1999). Online ISSN: 1097-4571 Print ISSN: 0002-8231 (Copyright © 1999 John Wiley & Sons, Inc.)

Kenneth D. Crews, "Introduction and Overview"

Dwayne K. Buttler, "CONFU-sed: Security, Safe Harbors, and Fair-Use Guidelines."

Mary Levering, "What's Right About Fair-Use Guidelines for the Academic Community?"

Kenneth Frazier, "What's Wrong with the Fair-Use Guidelines for the Academic Community?"

Joann Stevens, "The Multimedia Guidelines"

Christine L. Sundt, "Testing the Limits: The CONFU Digital-Image and Multimedia Guidelines and Their Consequences for Libraries and Educators"

Laura N. Gasaway, "Guidelines for Distance Learning and Interlibrary Loan: Doomed and More Doomed"

Kenneth D. Crews, "Electronic Reserves and Fair Use: The Outer Limits of CONFU"

Colin Day, "The Economics of Publishing: The Consequences of Library and Research Copying"

Kenneth D. Crews and Georgia K. Harper, "The Immunity Dilemma: Art State Colleges and Universities Still Liable for Copyright Infringements?"

Neomi A. Rivera-Morales, "Fair-Use Guidelines: A Selected Bibliography"

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Everything Else...

Illegal Art: Freedom of Expression in the Corporate Age, November 13-December 6, 2002 (New York) and January 25-February 21, 2003 (Chicago), an exhibition of 'degenerate art' of a corporate age: art and ideas on the legal fringes of intellectual property.

Art, Technology, and Intellectual Property, held by the American Assembly of Columbia University on February 7-10, 2002 [final report of the symposium, available as a pdf file; the site also includes streaming video clips of some of the presentations]

Beyond Copyright: Do Artists Have Rights? A panel discussion of the Visual Artists Rights Act (VARA), February 21,2001, 90th Annual Conference of the College Art Association, Philadelphia, PA

Copyright and the Information Highway, Information Highway Advisory Council of the Government of Canada

 

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Note to readers: Over time, a number of urls cited on this page have been changed, removed, or lost. I have tried to find the original materials mentioned in the link, often resorting to the Internet Archive's Wayback Machine.

The first edition of this site appeared on March 22, 1996