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Intellectual Property and the Arts

Clearing Rights

This is the second in a series of articles on copyright issues sponsored by the CAA Committee on Intellectual Property (CIP), in which a hypothetical question is posed on one aspect of rights, permissions, fair use, and related topics. We provide a short answer on the legal aspects of the question, followed by commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific legal questions, please contact an intellectual-property attorney.

Q: I am writing an article for publication in a journal in the United States and would like to illustrate my text with photographs of works of art. The artworks are all currently protected by copyright. I photographed some of the works myself; I rented other photos from the museums that own the works of art. How should I proceed?

A: You need written permission from the copyright holder of each artwork to publish the photographs, both the ones you took and those obtained from museums.

The owners of the actual, physical artworks are not necessarily—and usually will not be—the holders of the copyrights in the works. The artist who created the work is, almost always, the initial holder of the copyright.1 These proprietary “copyrights” exist independent of the artwork itself: the artist can keep the artwork and assign, transfer, or sell its copyright (or, more often, can sell the artwork and retain the copyright to it). So a museum or collector who acquires a copyrighted painting, photograph, or sculpture rarely will own the copyright in such works—and therefore may not be able to authorize you to take or publish a photograph.

The holder of a copyright in a visual work has multiple rights: the exclusive right to reproduce the work in any form or media, to prepare adaptations or modifications of the work (so-called derivative works), and to distribute the work (and any copies of it) to the public, as well as the exclusive right to authorize others to do any of the above. Each of these various rights, which together comprise the total “copyright” in the work, can be sold, assigned, transferred, or bequeathed to others. The copyright holder has the right to control if, where, or when a photograph of the artwork will be published or otherwise displayed. The copyright holder may make permission contingent on specified terms, such as prohibiting alterations to the image (for example, cropping or overprinting), approval of text or color quality of the reproduction, or requiring a certain credit line.

Copyrights are property that will pass on to the artist’s heirs, who then control these rights for seventy years after the artist’s death in the United States.2 Hence, getting permission to use a copyrighted work after the author’s death will usually involve dealing with his or her heirs, or a rights-clearance agency.

If the author of the work (the artist) was not in the United States when the work was created, foreign copyright laws may apply to rights clearances, even if you are publishing in the United States. Conversely, if you are publishing outside the United States, other countries’ laws may be applicable, and these laws may differ from U.S. law on whether you are allowed to publish the photograph of the work without securing the permission of the copyright holder, under certain circumstances.

CIP Commentary

Identifying the copyright holder may require several inquiries. The owner of the artwork (e.g., a museum) can often supply you with contact information for the holder of copyright, but it is your responsibility (or in some cases your publisher’s) to seek the information if it is not supplied with the photograph. Where the artist created the work outside the United States, it may be more difficult to get necessary permissions, but permissions are required even if you are publishing reproductions of the work only in the United States.

Sometimes the artist (or the artist’s estate or heir) grants a museum or collector a limited license to distribute images of the work for certain specified uses, such as collection catalogues or scholarly publications; if so, the museum will specify those terms in the permission forms it sends you. A museum may charge you a fee for rental of a photograph and processing, but unless the museum owns the copyright to the artwork (or has been given permission by the copyright owner to charge reproduction fees, which rarely happens), the museum should not charge an additional “copyright” or permission fee. Only the copyright holder has the right to authorize publication of copies and collect fees for granting others this right.

There is no legal difference between publication in a for-profit and a nonprofit journal or book with respect to obtaining the right to reproduce a photograph of a copyrighted artwork. However, in practice, fees are often negotiable and may be reduced or waived on occasion. Rights—holders may reduce fees for nonprofit use, for a publication with a small printing, or for use of an image where the text depends on its illustration, educational use (as in a textbook or scholarly text), and so on.

Be sure to plan ahead and begin the process of seeking permissions early: the process can be time-consuming and complex. Artists’ websites may provide contact information. Many well-known artists (and their heirs) use agencies to manage permissions for them and/or to provide photographs of works. Among these, in the United States, are the Artists Rights Society (ARS) and the Visual Artists and Galleries Association (VAGA).

It can be very difficult to locate and contact copyright holders (often the artist’s heirs) of a dead artist’s work that is still in copyright. If you make a good-faith effort to find and obtain the necessary permission to reproduce an image of an artwork but are unable to trace the copyright holder, you and your publisher may wish to consider whether your proposed use of the image would be considered a “fair use” under the U.S. copyright law. “Fair use”—which is based on a statutory provision and case law—may allow you to use copyrighted materials without the copyright holder’s consent for some purposes, including criticism, comment, news reporting, teaching, scholarship, and research. In principle, “fair use” exists to permit certain uses that further public benefit and do not negatively affect the commercial interests of the copyright holder. If your publication is a nonprofit, scholarly work being published and distributed in the United States and your use generally satisfies the requirements for fair use set out in the copyright law, your case for asserting that your use is “fair” may be strong. But “fair use” is a complex topic and will be discussed in greater detail in the next Committee on Intellectual Property Q&A article for CAA News.

1. An exception is work created on the job under a “work for hire” agreement; under these agreements the employer owns the copyright.

2. This is a simplified rule and applies to works created after December 31, 1977, in the United States. This seventy-year term is the same in many European countries, although laws outside the United States vary. A chart listing years of copyright protection for artworks created before January 1, 1978, is illustrated in the September 2003 issue of CAA News and is posted here.

Rules of Thumb

  • United States copyright law grants artists control over the right to copy (including by reproducing in photo- graphs), publicly display, distribute, and adapt their works.
  • Copyrights are property rights separate from the physical work of art itself; the owner of the artwork and the holder(s) of the right to reproduce or distribute copies (or make derivative works) may be different parties.
  • Permission from the copyright holder is required if a photograph of a copyrighted artwork is to be published, even if you take the photograph yourself, absent some specific exception (or fair use).
  • A museum or other collecting institution often has permission to distribute images of copyrighted artworks only under certain conditions.
  • Most institutions will advise you to contact the copyright holder to authorize publication of a photograph of a copyrighted work, and will aid you in contacting the rights holder.
  • Museums charge fees for renting and processing photographs of works of art under copyright (and in the public domain). These fees are sometimes described as “copyright” or “permission” fees, but these terms are misleading. In most cases, the fees museums charge for use of photographs of artworks under copyright would be more correctly described as rental or licensing fees. You may be asked to pay an additional fee to the actual holder of the copyright (usually the artist or his or her estate or heirs) for permission to publish the images.
  • Keep good records. You should have paperwork on every image of a copyrighted artwork you wish to publish. Consult your publisher to determine if your documentation is sufficient for publication.

Contact Information for Vaga and Ars

Artists Rights Society (ARS)
536 Broadway, 5th Floor
New York, NY 10012
Tel: 212-420-9160
Fax: 212-420-9286
www.arsny.com

Visual Artists and Galleries Association (VAGA)
350 Fifth Avenue, Suite 6305
New York, NY 10118
Tel: 212-736-6666
Fax: 212-736-6767
rpanzer@vagarights.com

For more information on securing copyright permissions, please see http://copyright.iupui.edu/permsec.htm.

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