Comments on: Little Images, Big Art

By: Deborah Wythe

Deborah Wythe — Thu, 21 Jan 2010 18:15:53 +0000

Hi Louise,
I checked in with Arlene (her internship is over and she’s no longer with us at the Museum), who responded as follows:

The example may not be a good defensible fair use case, but it
certainly shows how litigious we’ve become. In the blog post the HP lexicon case was used not to comment on its legal merits, but to illustrate the current charged/contentious atmosphere surrounding copyright – which this last comment illustrates as well. I can’t comment on the materiality of the amount actually taken, but thanks for the additional information – I will certainly be more cautious if/when I cite this case in the future.

By: Louise Krasniewicz

Louise Krasniewicz — Thu, 21 Jan 2010 16:23:14 +0000

Using the Harry Potter Lexicon example is misleading. Igf you read the legal documents from the case, it was clear that the author of the Lexicon was lift large amounts of material word-for-word from other sources. That is not a good, “well-intentioned,” example.

By: Deborah Wythe

Deborah Wythe — Thu, 14 Jan 2010 19:32:03 +0000

Hi Diane —

I think Arlene meant that some would urge us to put up full-size images but that we were being conservative (or cautious) by instead using thumbnails, under fair use. So we’re actually doing what you advocate: using it.

I agree that fair use is hugely important. There is currently a working group developing fair use guidelines for images (much like the ones spearheaded by the Center for Social Media). Once those are out, I hope that they’ll give both guidance and the courage of collective action.

Deb

By: Deborah Wythe

Deborah Wythe — Thu, 14 Jan 2010 19:22:14 +0000

Hi Peter,
I’ll check and see whether we can post the non-exclusive license.

We go to artists directly whenever we can come up with contact information. Aside from the fact that it’s literally more direct, we benefit from the interaction — it becomes a personal relationship with positive give and take about more issues than just the legal one. Galleries have been really helpful in forwarding letters/licenses to artists who they represent. And, of course, a lot of artists now have websites, which is tremendously helpful.

Deb

By: Deborah Wythe

Deborah Wythe — Thu, 14 Jan 2010 19:15:27 +0000

Hi Amalyah,
Yes, we sometimes get asked to pay for permission for the larger image. When that happens, we go with the thumbnail as fair use.
Deb

By: Brooklyn Museum: Community: bloggers@brooklynmuseum » Copyright is complicated

Thu, 14 Jan 2010 19:12:28 +0000

[…] and their estates for our entire Contemporary Art collection. (Arlene Yu will talk about that more in a later blog post.) We also want to be as open and transparent as possible with our community about the images we […]

By: Diane Zorich

Diane Zorich — Thu, 14 Jan 2010 19:07:56 +0000

Regarding the statement: “We’ve opted to take what we consider to be a conservative approach: even though some would argue that our posting of images of works online is an example of fair use, we’re seeking explicit permission from artists, in the form of nonexclusive licenses, in order to post anything bigger than a thumbnail.”

While I can understand institutional reasons for taking this stance, I also cringed a bit when I read this because fair use is one of those things where you “use it or lose it”. If cultural institutions keep taking conservative stances, they will lose it. US courts consider (in addition to the law) a community’s tradition of use when deciding on cases. If the tradition of use in cultural organizations continues to be conservative, this may well work against the community when it *does* want to push on what it believes is a fair use case.

Did this broader picture enter into your decision making? (I continue to dream that leading institutions such as yours will take up the banner!)

By: Peter Hirtle

Peter Hirtle — Thu, 14 Jan 2010 19:01:13 +0000

The default license you try to get artists to sign sounds very useful. Any chance that you can post it?

And have you been going through VAGA and the Artists Rights Society, or contacting the artists and estates directly?

By: amalyah keshet

amalyah keshet — Thu, 14 Jan 2010 18:28:14 +0000

Have any artists, heirs, or agencies asked that you pay for permission to offer the larger downloadable image?

If so, what is your policy?

Have any objected to the thumbnail reproduction, asked you to take that down?