AAM Portland - 2003

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

Last revision: May 23, 2003 by CLS
Created by Christine L. Sundt, University of Oregon Libraries
UO Home
University of Oregon Libraries | Architecture & Allied Arts Library | Visual Resources Collection | Eugene, OR 97403-5249 | 541/346-2209 v. -2205 f.