Art Counsel

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Keeping it Real: Fair use, Images, and Gaining Permissions.

Keeping it Real: Fair use, Images, and Gaining Permissions.

Cornell has a great checklist for determining if your use of a copyrighted original qualifies as “fair use.”  Unfortunately it really only applies to academic uses and once your project steps one toe outside scholarly territory, fair use law becomes murky. This is particularly true with images and the internet. While I am not an expert, I did work with Susan Bielstein who actually wrote the book on visual art permissions, so I am hoping that my experience with her can help.

It is true that we were using the images for hard copy publication and for profit, but due to the scholarly nature of the University of Chicago Press, and the fact that the Press never actually made a profit, our acquisitions practices existed in a weird hybridized permissions limbo. We couldn’t just fill out a form, pay our money and make our choice because there simply was not a lot of money and that was often dependent on grants.  So, in order to keep costs down, permissions requests often called for a certain combination of diplomacy, humility, and persistence that anyone on the edge of educational services or slightly outside the wall will need to know.  Benefit corporations and non-profits should be especially warybecause if you want to use images that you did not create or photograph yourself, you probably need to learn how to seek permissions, or at least learn some terminology if fair use might not apply.  Let’s begin with some important commandments and related gray areas.

1) If your publication (online or print) is connected to a for-profit business, fair use usually does not apply to you. So you will also need to know about public domain law and you will have to pay for permissions.

a. Gray area:  if your business is connected to education (established, accredited schools), you may be able to get permissions fees waived if you ask nicely, but you will still have to gain permissions.

2) If your online publication is related to a non-profit business – and by non-profit, this means that the business is registered as such and you state this on your taxes with your non-profit FEIN tax number you will need permissions for all copyrighted material, but you may not always have to pay for them.

a. Gray area: If your non-profit offers classes, you may use copyrighted images according to academic guidelines for those classes only (see below)

3) If you are an educational institution, as long as your images are limited to use by students for a limited period of time (usually one school term) on a private or password protected site, for educational purposes only, and you only use images that are absolutely necessary.  HOORAY!  You won’t need any permissions.

a. Gray area:  Fine art students will need to make sure that they are not infringing on fair use laws when using images for transformative use.  Instructors and students will need to keep up on recent developments in fair use law and keep current on lawsuits regarding transformative use in order to make the best decisions regarding this touchy area.[i]

4) If your website is not related to any kind of non-profit business or educational institution, fair use does not apply to you and you will need to seek permissions for image use.

5) If you want to use an image that may or may not be copyrighted, and you have made a good effort at finding the copyright holder, but could not locate him/her/it[ii]; this image is considered an “orphan” and you may publish it.  CAVEAT:   You must record and save your search efforts in case you are called upon to prove due diligence should someone claim copyright infringement.[iii]

In a nutshell, outside of pure and limited academic use, you will probably need to make sure that you have permission to use any copyrighted images for web publication.

Now, here is a basic primer on how to go about getting permissions when you do need them:

1) Find the copyright holder

a. If you are getting the image from a book or other publication this should be fairly easy as this information should accompany the image

b. If the image is of an art work of any kind you may search for copyright info by author name, image source, or through an image retrieval method.

i. Art Resource and ARTstor are good places to start, but are by no means the only place to look.

ii. Lesser known artists can be found through artist representative groups such as VAGA or the Artist’s Rights Society[iv]

iii. If you have no info, contact people who might know.  Librarians and archivists are the best start. The Council of State Archivists is a good directory for US archives or you can start with your local university. Many academic libraries have helpful chat services that will help point you in the right direction.

2) Make extremely polite contact with the copyright holder.  There are some excellent examples of form letters in “Permissions: A Survival Guide” by Susan Bielstein.[v] Remember that you need to explain any special circumstances that can help you gain a discount or fee waiver (non-profit, educational purposes etc.)

a. If the copyright holder is a business or is represented by a protective agency, contact the permissions representative to ask if there are any special instructions for non-profit agencies, educational institutions, etc.

b. Follow those instructions to the letter.

c. Send a thank you letter.  Send a really nice thank you letter if you receive any special consideration. If you do they may remember you and give you special treatment again.

3) If your image classifies as public domain (100 years after death of author is a basic guideline), the photograph may be protected by copyright, so check because permissions law is always changing.  It has recently been judged that photographs that simply represent artworks and do not display any creative license are not copyrightable; however museums and archives are disputing this.  A little diplomacy here: if you will need to obtain any images directly from a museum, representatives may decide not to do business with you should you assert this point.[vi]

In conclusion, it is better to be safe than sorry when it comes to copyright law, so make sure that you get the permissions you need.  It’s a lot cheaper and easier than a lawsuit.

And FYI, if you ever want to use an image of a Picasso, you may not only need to shell out the big bucks, but you may have to gain permission from several entities.  Just a word of advice from your friendly neighborhood permissions jockey.[vii]

Related Links: Hooray: Charges dropped against professor who made Derrida works available to students by copyrightgirl

Do copyright laws stifle creativity? – Lawrence Lessig posted by copyrightgirl

Center for the Study of the Public Domain

[i] Baer, Marjorie. “Copyright and the Visual Arts.” Macworld 13, no. 10 (1996): 163-167.

[ii] Copyright holders are often estates or businesses.

[iii] Buttler, Dwayne, K. “CONFU-sed: Security, Safe Harbors, and Fair Use Guidelines.” Journal of the American Society for Information Science 50, no. 14 (1999): 1308-1312

[iv] Bielstein, Susan M.. Permissions: A Survival Guide. Chicago: University of Chicago Press, 2006; 166

[v] Ibid 162-163

[vi] Buttler 1310

[vii] Bielstein 106-108

Time Management and Conferences

Yah, it’s difficult to hand in all of those papers, apply for travel grants, and get that abstract sent off in time, but not impossible. You just have to know how to manage your time.

Ideally you should start a list of promising Calls for Papers about six months ahead of the busiest months for deadlines – December and June. Start local if you are not a seasoned conference speaker as you are going to need all the time you can get on writing that proposal and preparing your speech. In this case, you should be asking peers and professors if there are any low-profile symposia coming up, as your goal is to have the least stressful preparation time. Often your university will have workshops or student-led discussions that can get you started.

One good thing about conferences is that you usually do not have to prepare much more than 10 pages of text for your presentation. Ideally you will have a thesis/chapter all ready to be edited into a concise little package for your abstract; but if it isn’t quite ready to be released upon the world, the best way to save time and keep your sanity – and maybe even enjoy your research a bit – is to recycle papers and articles you have been working on but have not published yet. The trick is to find an angle.

So dust off that paper on Mughal floral symbolism from last year that you have been dying to get back to, and look at the CFPs to see if there is any way you can fit it into someone’s conference theme. Is there a symposium with a post-colonial bent? Maybe you can connect European collections of Asian art with issues of paternalism. Is there a conference on the decorative arts? Maybe you can discuss floral symbolism in Persian rugs. You should try a few different angles, but they should not be so different and so far from your original subject that you end up sacrificing deep research for broad.

Once you have crafted a few good abstracts that you think can be pursued in tandem with your primary research, send them off and continue to take notes and craft good outlines. Don’t bother with the final writing until someone invites you to speak at a conference, but you should be prepared to write quickly once you get that invitation. Sometimes there are only a few weeks between the time you are notified and the actual date of the conference. Also, remember conferences are fun, good for your resume, and great for bouncing new ideas off your peers, but unless you are pretty far along in your grad program, conference papers are much less important than getting your thesis/PhD proposal all together. If you can’t fit it all in, there will always be another conference.

Finally, prepare for your speech. If you can, please try to work from notes rather than reading a paper. This always makes the speech more dynamic. Also, practice speaking. It is really impossible to give a really good speech without running through it more than a few times. And don’t forget about the time limit. There is nothing more annoying to your fellow speakers than speaking for a half hour or 45 minutes when you have a suggested 20 minute time limit. less time speaking also means more time for questions, and that is what you are there for, right? To find out where you can strengthen your argument or to learn more from people in related areas? The organizers will appreciate it and remember you for it as well if you can control your time. They may even like you better for it and look for you at the next networking opportunity.

Related info: Get off the stage and tweet by Steve Friedman

What to do when being an expert comes knocking on your door by Socialchangediva