Indian. Page from an Astrological Treatise, ca. 1750. Opaque watercolor on paper, sheet: 7 3/4 x 4 1/2 in. (19.7 x 11.4 cm). Brooklyn Museum, 71.120

There’s an Elephant in the Library.
Organizers Promise It Will Never Forget.
Hathi (pronounced hah-tee) is the Hindi word for elephant.

Enter copyright. Many of the books in the database are available only as “limited — search only” records. Hathi Trust books that fall into the Public Domain are automatically available, but everything after 1923 has to be researched and copyright cleared…OR…the copyright holder has to grant permission.

You’ve probably noticed that a lot of the content on the Brooklyn Museum website is licensed under a Creative Commons non-commercial attribution license. HathiTrust now offers that option to rights holders. It was a natural for us to jump in and offer pre-1990 Brooklyn Museum and Brooklyn Institute publications under CC terms, too. More recent books will come online gradually, as they go out of print and the stock dwindles (yes, we still want to sell books).  And books that we co-published are going to take some legwork to acquire permission from partners.

There’s a lot to dig into, from Charles Edwin Wilbour’s Travels in Egypt (1880-1891) to John I.H. Baur’s 1940 Eastman Johnson catalog to Linda Ferber’s 1973 work on William Trost Richards.

Thomas Pollack Anshutz (American, 1851-1912). Boy Reading: Ned Anshutz, ca. 1900. Oil on canvas, 38 1/16 x 27 1/16 in. (96.7 x 68.8 cm). Brooklyn Museum, Dick S. Ramsay Fund, 67.135

A book is still a beautiful thing — these don’t have their pretty covers and the illustrations can be…hmm…less than optimal — but there’s a lot to be said for being able to dive in and READ whenever you want. We hope that you’ll enjoy this new resource, but that you’ll also visit your library (or ours)  to hold these treasures in your hands.

Tell us what you’re reading!

“Any analysis of ownership and duration must be performed on a case-by-case basis for each work.”
Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives & Museums.
Peter Hirtle, Emily Hudson and Andrew T. Kenyon (Ithaca, NY: Cornell University Library, 2009)

Given this statement, from some of the best authorities in the field, we faced a dilemma:

• We have tens of thousands of objects in the Museum collection.
• We want to put the entire collection on line so people will have access to both data and images, even if they’re only thumbnails, likely to fall within the Fair Use exception to copyright protection.
• We want to be clear about rights, not just for our purposes (we acquire a license when we want to use an object that’s protected by copyright), but to communicate clearly and honestly with members of the community.
• However, we don’t always have all of the information needed to identify artists or the dates of the works, and may never be able to acquire all of the needed data. We may have to make our best guess. Works of art are not like books: they don’t have the author and publication date printed on the title page and “publication,” necessary for analyzing copyright status, is not as clear cut for works of art as it is for books.

Our solution:

• Paint with broad strokes, dividing the collection into under copyright and no known copyright (i.e. we think it’s in the public domain) using broad rules of thumb:

• Work created before 1923: no known copyright restrictions
• Work created from 1923 to the present: under copyright, even though copyright may have expired. Someone with the time and resources to do detailed, case-by-case research may be able to clear the work
• Anonymous artists: works created before 1890: no known copyright restrictions.
• Brooklyn Museum photographs of three-dimensional works not protected by copyright: Creative Commons license

• Open the website to comment and draw on community knowledge to correct and refine.
• Err on the side of protecting artists’ rights.
• Use thumbnails, likely to fall within the Fair Use exception to copyright protection, whenever a work may be protected by copyright.
• Take the risk to get the information out there (but include language from the Museum counsel so that it’s clear we’re not providing legal advice)
• Provide links to authoritative resources on copyright.
• Collaborate with other museums and groups interested in art and image copyright.

Some sample records:
no known copyright restrictions
under copyright
under copyright, license obtained
three-dimensional work, Creative Commons license
status unknown, research required

This has happened as we’ve found and contacted artists (or their heirs or other rightsholders), getting permission from them to share their work online, a project I worked on in spring 2009 as an intern in Digital Collections and Services. The work has become necessary as we’ve found ways to share our collection on the Web. As a cultural heritage institution we believe it’s our duty not only to make our collections available to the widest possible audience, but also to respect the intellectual property rights of others, as well as to set an example and provide some education about copyright in works of art.

But copyright in general – particularly when it comes to art—is a complicated subject these days. You have only to look at what is considered by many in the museums/libraries/archives world to be the authoritative copyright guide to see how many different considerations come into play when determining if a particular work is still under copyright, let alone who holds that right. In addition, for older works of art, there is often no way for us to tell when, or even if, a work of art was ever “published” in the legal sense of the term, and thus under which copyright “rule” it should fall. And copyright continues to be a matter of debate in the courts, so even the go-to chart doesn’t have all the answers.

What’s our answer? It’s not perfect. 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. We’ve also tried to balance a respect for copyright with what is actually possible for us to achieve, since there’s no army of lawyers specializing in intellectual property at our disposal!

So we’ve decided to consider anything created after 1922 to be under copyright, even though many works may not actually still be protected. We’ve also decided to approach artists and ask for blanket permission for works created after 1922—again, even though many works may not actually still be protected. Deb is going to blog a bit more about our working guidelines coming up next.

With these guidelines, we were able to whittle down the number of works needing clearance to about 19,000, and the number of artists/heirs to about 4,300. Since January 2008, six part-time interns have worked on getting clearance, and each intern was allowed to define the artist pool she tried to reach. The intern before me, for example, focused on artists from the early 20th century with more than 50 works in our collection, while I researched artists who were included in our 2007 acquisitions. We’ve cleared about 2,500 works to date.

The work is slow going, despite our success rate. The amount of work we have to do for each artist isn’t dependent on the number of works she created, but on how hard it is to find her and how willing she is to respond. With our collections on the Web we have to specify that images may be used worldwide (which can ring alarm bells for anyone concerned with licensing), and we’ve tried to future-proof the license by including any media that have not yet been invented (another possible alarm bell). So even though we’re asking for a nonexclusive license which leaves the artist free to pursue other opportunities; even though our license only authorizes us to do things which are in keeping with our educational mission; even though as an established museum you’d think we should be trusted to maintain an artist’s legacy (that’s presumably why we acquired the works in the first place); even though other, more detailed images of the artist’s works may already be all over the Web, we still encounter suspicion. I suppose it’s not surprising in a world where a well-intentioned lexicon of the Harry Potter world is subjected to a lawsuit.

Although the word “copyright” might evoke boredom (or fear or anguish, as the Harry Potter case suggests), the work has actually been really interesting. Sometimes the search for an artist is as simple as Googling her name and finding her website; sometimes it takes a triangulation of information from various databases as I use the artist’s current age from one database, biographical information found elsewhere about where she’s lived, and last known address from a third source to find her through yet a fourth phone directory. At times our own library will yield a nugget from a newspaper clipping about the artist’s wife or children (or lack thereof). And together with this sleuthing I’ve had to keep track of where every artist we’ve researched is in the clearance process, plus follow up if necessary (with the appropriate amount of diplomacy).

Gary Alan Bukovnik (American, born 1947). Rhododendrum, 1980. Lithograph Brooklyn Museum, Gift of the artist, 81.15.2. © Gary Alan Bukovnik

Responses from artists have varied as widely as the work itself. Estates and heirs are often reluctant to grant us the broad permissions we seek. Maybe they’re concerned we will damage the artist’s legacy, though that hardly seems in keeping with our mission. Sometimes they’re commercial enterprises interested in making money off of that legacy. Living artists also run the gamut from ignoring us entirely to promising to sign and send the license back, but apparently never getting around to it, to returning a signed license the very next day. In one of our happier experiences, Gary Bukovnik recently sent an e-mail thanking us for “the experience of re-living those pieces on the list which I have long forgotten!…This was a very pleasant surprise waiting for me in today’s mail.”

But at our rate of progress we have a long way to go – 4,000 artists – so if you see a small image of a big work of art on our site and you know how to locate the artist or her heirs, please let us know (copyright@brooklynmuseum.org)!

On the other side of the coin, there’s a huge community hungry for images that they can use for a million different projects – websites, blogs, school papers, art projects, mashups. They’re willing to pay attention to whether an image is in the public domain or not, but they don’t always understand what that means, and the institutions with the images rarely provide useful guidance (see paragraph 1).

My book shelf: I’ve been doing a LOT of reading, both books and on line. 

Over the past several months, Brooklyn Museum staff members have been wrestling with this problem. We respect artists’ rights and are working on contacting artists 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 provide on our website.

Our first decision was to provide at least thumbnail images of all art works on our website, as allowed under the fair use exemption in copyright law, and to include an explanatory “why is this image so small” for objects under copyright. The next step was to provide more information on everything else. Is the work in the public domain (“no known copyright restrictions”) or protected by copyright? Is it a three-dimensional work, where the Museum holds copyright to our images but not the work? Are rights to the work controlled by a licensing agency?

In order to accomplish this, we needed to sort through the entire collection database and assign rights types, no small task. Is the work two dimensional or three dimensional? When was the work created? With the categories established, we’re now ready to start sharing our work with our community. We ended up simplifying things greatly, lumping all “under copyright” and “could be under copyright, depending” objects together. If you have the time to do deeper research and the legal expertise to analyze what you find, you may well identify works that are already in the public domain. We’d rather err on the side of artists rights than the opposite.

Now that we’ve included all of this information on the collections pages, I’m hoping that members of our community will jump in and help with the project, just like they have on Flickr Commons. If you have more information about our artists (are you one of them?) — get in touch! If you think we’ve gotten something wrong, let us know and we’ll fix it. This is all a starting point, not legal opinion, that we hope will lead to clearer, more useful rights information.

I’ll be providing more detailed information about the project in future blog postings. Stay tuned for a post on our guidelines and I’m thinking about digging into the publication history of some works in the collection to show what it really takes to declare something “public domain.” Let me know if there are topics you’d like to hear about (keeping in mind that I am very definitely NOT a lawyer). We hope that you’ll find this work in progress both interesting and a step in the right direction.

We’ve been toiling over an ongoing project to better identify the rights status of objects in our online collection, so with World’s Fair Use Day it seemed like an appropriate  week to start blogging about these significant changes and launch this project into the wild.

Starting today, each object on the Museum’s collections pages will have information on its rights status, including those that are understood to be under no known copyright.  Also included is information to clarify what we mean by a certain rights type and, importantly, links to further information about copyright.  We are asking members of our community to comment and e-mail if they can provide more information about artists, corrections if they think we’ve gotten it wrong, and generally participating in our ongoing efforts. The addition of this information will be a starting point for dialog that we hope will lead to clearer, more useful rights information in our collection online.

Images that are licensed Creative Commons or are “no known copyright restrictions” can now be queried from the advanced search on our website.  All rights types are integrated into the Brooklyn Museum API, providing greater flexibility in getting to this new data. Lastly, we’ve taken one more baby step in the ongoing direction of opening up more content—with images and text that we own the copyright to, we’ve changed our default Creative Commons license on the site from a CC-BY-NC-ND to a CC-BY-NC, to allow for greater re-use of materials.

Over the next few days, we’ve got some blog posts coming about the specifics—stay tuned for posts from from Deborah Wythe, Head of Digital Collections and Services and Arlene Yu, an intern working with her.  Please be sure to read the whole series if this subject interests you.