The difficulties posed by image requirements in art historical publication have yielded various challenges to restrictive interpretations of copyright and permissions standards.1 Publisher costs and access issues cannot be fully addressed by fair use practices and copyright waivers, but they may be further mitigated by rapidly developing print-on-demand technology. This section surveys these strategies and their potential for relieving pressures on scholarly publication.

Although the Bridgeman v. Corel decision was not widely noted in scholarly circles, it has yielded revisionist discussion in museum and publishing communities about the benefits, legality, and negative aspects of alleging or implying copyright over flat images of flat works of art, particularly when those works are in the public domain. Buoyed in part by the court decision, several editors and authors have taken modest practical initiatives in raising awareness of the hold of copyright law over the production and communication of scholarly and creative work. On occasion, for example, publishers include prominent notes announcing that permissions have been denied, substitute images have had to be used, or images have had to be dispensed with altogether. In 2006 the Art Bulletin began to note the public domain status of works of art in captions to illustrations of such objects. Although these statements call welcome attention to the questionable status of some copyright claims, they tend to have unfortunate effects on the appearance of publications and may not constitute long-term remediation of the hold of copyright law over scholarly, creative, and critical uses of images. It is imperative that scholars be informed of their rights, responsibilities, and liabilities in the uses of images, but extensive ownership listings and public domain specifications in captions may inadvertently appear to accept a contestable system of implicit copyright claims. It is ironic that such preemptive strikes against legal action should be mounted to protect scholarly publications that are unlikely to be subjected to such challenges in practice.

Some publishers have in recent years become more inclined to scan images from previous publications without copyright permission, particularly if the images are of works that have long been in the public domain and if they are of two-dimensional works of art. Although the Bridgeman decision seems to set a strong precedent for such use, publishers are likely to use this technique only as a last resort. Case law is not highly developed in this area, and, perhaps more crucially, a printed scan of a previously printed image invariably deteriorates that image and its approximation to the reproduced work.2 (The moiré patterns that always result from the overlay of the offset printing screen and the pixelated image can be multiplied by secondary scanning and renewed offset printing. It must be noted, however, that digitization and scanning techniques have become so sophisticated that such patterns can now be corrected with relative ease.)

The American Association of Museums (AAM) immediately recognized the eroding effect of the ruling against Bridgeman on museum copyright claims.3 There is now lively debate within the museum community about the value and purposes of asserting copyright over images of works in the public domain. The debate has yielded new research into best practices. The 2004 AAM survey of rights policies among its member organizations registers the awareness that the Bridgeman case has placed museum copyright claims on thin ice.4 When asked if the permission-granting institution required the publisher to use a copyright notice in the caption or on the image, 33 of the 41 respondents answered no, frequently noting that the works were in the public domain; that it was not clear whether the museum, or indeed anyone, owned copyright in the reproductions; or that the issue was altogether "too touchy." Almost all of the eight institutions requiring copyright notices qualified their answers, indicating uncertainty and/or flexibility about the copyright claim. The majority of survey participants chose not to respond to this question, in contrast to the forthcoming response rate to other queries.

Kenneth Hamma, Executive Director for Digital Policy at the Getty Trust, has argued the case that museums may be better off relaxing claims to intellectual property in images of works of art in their collections, for financial, philosophical, and legal reasons.5 The production of images in museums is usually subsidized by public funds, directly or indirectly. Public dissemination of high-quality images of works of art reduces costs of maintaining rights departments and enforcement services. The wide circulation of such images encourages museum attendance, and serves the fundamental museum missions of public education, art historical research, and support of creative effort.

Hamma's argument is bolstered in part by a 2002 cost-benefit analysis of the sale of digital and analog images by European collections of culturally significant artifacts. This study, commissioned from Simon Tanner and Marilyn Deegan by the Andrew W. Mellon Foundation, sought to test the hypothesis that "anxieties over reduced income [for digital images of works] in cultural institutions may actually be [attributable to] a perceived loss of the gate-keeping rights function, rather than actual loss of income for the medium, if measured against the pre-digital environment."6 The study found much evidence to uphold the hypothesis. Participating institutions stressed the service mission of their image services and rarely analyzed the full costs to their organizations of making and distributing images. Digital images appeared neither more nor less cost-effective than analog; if anything, rapidly lowering digital production costs were perceived as making the digital image ever cheaper.7 Even so, the study suggested that image services are not a vital source of revenue in relation to the real costs to the institution, and that the financial issues often cited by institution staff might be rationalizations for less concrete concerns. Worries about digital transformation appeared founded at least as much on "moral rights issues," such as the museum's curatorial duty to maintain high facsimile standards for works of art, and on loss of control over the instantly reproducible digital image.8 These anxieties are likely to have subsided even in the few years since the study was conducted, as digital image capture has now replaced analog photography in virtually all American and European institutions of the kind surveyed in the study.

The lines of thinking suggested by these surveys and reports are beginning to yield new initiatives in museums toward regularizing and liberalizing permissions and fees for the scholarly and educational uses of images of works of art. The AAM survey of 2004 was meant at least in part to help rights and reproductions staff respond more effectively to user requests. The reported fee structures generally appeared to take into account the fewer resources and lesser commercial value of scholarly publication, and in qualitative answers to queries about fee reduction policies many respondents professed themselves quite open to negotiation and sympathetic to pleas of scholarly hardship.9 In March 2006, the Metropolitan Museum of Art announced its intention to develop an online licensing system for images of all works in its collections, through an arrangement with ARTstor, the largest non-profit digital image provider. The Metropolitan Museum will seek to distinguish commercial applications from scholarly use, and radically reduce its use and permissions fees for scholarly purposes, perhaps removing all fees for reproduction of their works that are in the public domain. ARTstor will begin to serve as the scholarly license clearinghouse for the museum's images in the fall of 2006.

If the Metropolitan Museum's welcome lead is followed by other institutions, a more centralized rights-clearing organization could be established in due course, either by extension of the museum's arrangement with ARTstor to other institutions or by development of a system on its model. The Artists Rights Society (ARS) and Visual Artists and Galleries Association (VAGA) already serve as such clearinghouses for artists whose works are in copyright. These organizations have the goal of streamlining permissions while protecting the commercial interests of the artists they represent, however, rather than facilitating scholarly publication at minimized fees, as is the goal of the Metropolitan Museum-ARTstor initiative.10

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This work is licensed by Hilary Ballon and Mariet Westermann under a Creative Commons Attribution License (CC-BY 2.0), and is an Open Educational Resource.

Last edited by Chuck Bearden on Dec 1, 2006 5:01 pm US/Central.