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Intellectual Property and the Arts

Digital Images: Access, Rights, and Distribution

This article by Helen Ronan, an editorial consultant, is drawn from a talk she delivered at the thirty-second annual conference of the Art Librarians Society of North America in April 2004.

For librarians, curators, editors, and instructors of art and art history, the quest for digital images has brought a world layered with new hardware, software, and the need to understand the complexities of rights and contracts. Once, we all used 35mm slides. We purchased them from commercial companies and museums, photographed artwork ourselves, used a copy stand to shoot reproductions from books. The use we made of these slides was educational and many works were in the public domain; the owners of artworks and of copyrights rarely objected.

Today, as slides are replaced by digital images, the change in technology has created other changes. We may still create our own digital scans from books or shoot our own images with a digital camera, or we may purchase or rent digital images on disk from packagers or museums. Often, though, our library or institution purchases a license to gain access to digital images. And the electronic realm (as with print) raises many concerns for the owners of artworks and of copyrights.

The formal licensing of images for classroom, lecture, and study is a relatively new idea in our departments and libraries. To address the question “Why digital-image licensing?” we should look first at how the slide-distribution model evolved into the system we are familiar with today. Slides are still in use, and will be for some time to come. So instructors and librarians are faced with a dual system of collecting and presenting art images in the classroom.

Slide Licensing

For many decades, most images used in art and art-history classroom lectures came from an institution’s in-house slide library. These image banks built their collections through faculty, professional photographers, museums, and vendors. Slides from commercial sources, which are generally purchased for convenience and quality, are obtained individually, through slide sets, and through standing orders to slide suppliers. Reputable museums, vendors, and photographers also provide high-quality images. However, only a fraction of the images needed by most faculty and students is available commercially at a cost in line with a school’s budget.

Companies that produce and market sets of educational slides cater to a niche market: the college, university, school, or museum classroom. In selling their packages of art slides, providers and vendors (commercial and nonprofit) have relied on a number of factors to restrict abuses (e.g., use of copyrighted images without permission in noneducational contexts such as publications, or unauthorized duplication of slides). Slide collections do not have a great deal of mobility, they are often housed in departments whose access is limited to faculty and students, and they are managed by trained visual-resources professionals.

In the traditional sale and use of slides, there was rarely any formal licensing agreement between vendor and user; implicit was the understanding that slides were sold for classroom or lecture purposes only. By and large, it was accepted for many years that such slides were used within the terms permitted by copyright and contract law. This limited use made the wheels turn—museums and artists were usually willing to permit use of their artworks—and prices could be kept within an educational institution’s modest budget.

Much of the photography in the files of commercial providers such as Davis Art Slides and Saskia was done either in museums or loaned to them by museums. Today, to photograph or acquire such images, vendors must reach an agreement with the museums and/or other owners and with the copyright holders of the works. Sometimes this is an actual license granting permission to distribute slides on the condition that the distribution is for educational purposes only (i.e., classroom projection and study). Vendors have other safety mechanisms. For instance, purchases by individual professors, scholars, and teachers are carefully monitored, and requests from nonacademic institutions and individuals are scrutinized. A slide request may be denied if it seems beyond the scope of the permission or license granted to the vendor by the museum or other image source. In these cases, the customer is sent directly to the image owner, who may charge a fee appropriate to the use. And if the vendor is the owner, then the user can negotiate the permission and fee directly.

Digital Licensing

The digital environment has shuffled and redealt the hand. Now there is the potential for much broader use—and misuse—of images. A handshake among family members works, but the outside world requires formal agreements. In order for providers to reach collaborative agreements with museums or professional photographers, end use must now be explicitly defined and boundaries must be established. Even when use is authorized, it has an effect on the sales of images and the income earned by copyright holders. For example, a visual collection no longer needs to purchase multiple or replacement copies of an image. A single digital scan may be used campus-wide and won’t degrade with overuse, nor will its colors fade. (This is why the pricing of digital images is often based on the size of the student body and number of campuses having access. Some schools have formed local consortia, e.g., among several campuses in a state-university system, to share these costs.) Of greater concern to copyright holders and the image vendors who are their partners is the risk of unauthorized downloads and copies of digital files. License agreements address these issues.

The specifics of the licenses may vary and cause frustration, but a formal understanding of use is essential for all parties in order to maintain a smooth flow of access and distribution, protect copyright holders, and curb infringements. Licensing to educational institutions generally falls into two categories: perpetual licensing (the model used by commercial vendors such as Davis, Saskia, and others) and subscription-based licensing (e.g., ARTstor).

Perpetual Licensing

In many ways, perpetual licensing follows the slide model: a vendor licenses a digital image from the image owner and/or copyright holder (or it sometimes owns the image rights itself), in turn licenses it to a library or other institution. The institution processes and keeps it. The license agreement states how the image can be used, usually restricting noneducational and commercial uses (if not more). Perpetually licensed images are sold in a variety of ways—again, much like slides. Large collections can be licensed, smaller specialized subsets are available, and some licensors offer individual images.

Perpetual licensing is appreciated for its flexibility and permanence. Images can be moved into a library’s own information-management system and accessed in a variety of ways. Some institutions want the “big package”—not quite one-stop shopping, but something with a few large collection licenses. Some visual-resources professionals prefer to select their material image by image; for them, individual-image distribution from museums or vendors is highly desirable.

Subscription Licensing

In a way, subscription licensing resembles a periodical or journal subscription, but with one important distinction—when a user stops paying, all access to current and previously used images disappears. In this model, the licensed institution receives a large body of images for use in ways outlined in the agreement. In some cases, a consortium license is available. These licenses also are based on student-body size, number of campuses, or the level of research conducted at an institution. An annual fee is paid to maintain the subscription, and users must find a way to integrate the digital images with the other image databases and software-presentation programs that the institution may be using.

Subscription licensing provides a high volume of images, allows smaller institutions access to an array of images that had not been possible in their own slide collections, and in some cases may provide a bank of images (to a community college, for example) that previously had no slide library at all. Nonetheless, institutions fret over the subscription model because digital images do not become a permanent part of their local collection. Myriad questions arise: Will the service stay in business? Will my institution be able to continue paying the annual subscription fee? Will we be able to use the images offline? Will the service be compatible with my other digital resources?

Digital-Image Rights

The collecting of digital images for either perpetual or subscription licensors can be a challenge. If an image is owned outright by the vendor, the film must be converted to digital format. If the original image source for a slide was a museum transparency, the vendor must go back to the museum and negotiate an agreement that will allow it access to a museum’s digital archive or will permit the vendor to convert a museum’s analogue image to digital format. Subscription services also negotiate with museums either to obtain museum scans, to create scans from museum transparencies, or to commission original digital photography. (The same process takes place when dealing with a professional photographer, or with the work of an individual artist.)

What are the stumbling blocks in these negotiations? For museums, cost and time are often the pivotal issues. With many museums facing severe cuts in staff and funding, new projects become more difficult to implement. The educational-image business is not particularly lucrative, so there is little financial incentive for a museum to participate in developing a digital-image archive. Some museums have not yet formulated a digital policy and thus do not have the means to make a decision. Other institutions, photographers, and artists continue to be wary of the wide dissemination of digital images and the perceived greater risk of unauthorized copying. Works of art involving third parties and copyright open another can of worms, and therefore negotiations for images of modern and contemporary art can be thorny. (Indeed, some copyrighted art is simply not available in digital format.) Museums also are wary of granting exclusive or permanent agreements, and of having digital images of their collections available through multiple sources. Image providers that do their own photography, such as Saskia, are finding that while in some cases they can continue to pay high commercial fees and do their own photography, many museums are simply no longer giving permission for outside photography.

Some museums and copyright holders are offering term-limited or temporary licenses, rather than perpetual ones—usually with a three- or five-year term, renewable upon payment of a new license fee. This is worrisome, as it undermines the concept of the institutional image bank as a permanent repository and resource—a library. Vendors (and sometimes individual subscriber institutions) are faced with the daunting task of policing the expiration dates of licenses for individual artists or works, and renewing them. On the other hand, for some temporary uses of images that will not be needed again, the term-limited license may be acceptable.

Classroom Use

Digital images are a classroom resource, and vendors should build their collections with this core purpose in mind. One can easily imagine how large databases of digital images could serve as a curatorial or scholarly reference. Though the idea of this kind of resource may be a good selling point in convincing a museum to sign an agreement with a vendor, we still must put the idea of the classroom resource first. In the future, however, we may see two types of subscription banks: one for teaching and another for scholarly or curatorial use.

Nevertheless, there is a need to convince rights holders, museums, and other image sources that digital images for the classroom and study are a good idea. The more comprehensive the global image bank becomes, the better it will serve learning and the love of art. Indeed, many rights holders, museums, and photographers already make their images available for this purpose in a most generous way. And it must be recognized that many are overwhelmed with requests for their images.

Access and Distribution

If we want to improve access to and distribution of digital images for educational purposes, we need to advocate: within institutions to heighten the awareness of the need for digital images in the classroom; among our peers who use images not to make unauthorized use of them; and among rights holders and museums to make them available in practical, useful ways. If rights holders and museums are anxious about the risk of abuses and infringements in the digital, then it falls to the end users—faculty, librarians, students, and scholars—to demonstrate our respect for copyrights and for license agreements and to meet a high standard of responsible use.

A pressing question is that of pricing: How can we make digital images tagged for educational use affordable? Does the student population/institution size–based pricing model work? Is there a way to refine the pricing of licenses so that it accommodates situations in which costs shared across multiple campuses provide no benefit—for example, where access is truly restricted to a single department or an independent art school? Should we work toward an environment where all images are downloadable and adaptable to a variety of image-management systems? What can be done to insure that subscription-based digital-image banks are permanently available, or at least long-lived?

Though the answers to these questions may be slow in coming and imperfect when they arrive, the world of digital images is here. We should welcome it, take advantage of its benefits, and work to make it better.

Originally published in the September 2004 issue of CAA News.

Helen Ronan, “Digital Images: Access, Rights, Distribution,” CAA News 29, no. 5 (September 2004): 11–14.

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