CAA News

Following the submission of the amended Google Book Settlement in November 2009, the deadline for opting out was extended. The new deadline is January 28, 2010 (postmarked or submitted online on or before that date).

Those who had not opted out of the settlement may still do so, and those who had opted out may now opt in, if they so wish. If you wish to maintain your previous status, you need not do anything. (Under a class-action settlement, all class members remain in the class unless they opt out.)

Opt-out forms (to mail in) and instructions for opting out online are available at the settlement website. You may also read the settlement FAQ for more information.

Today is the deadline for a revised settlement agreement to be filed in response to a lawsuit by the Authors Guild and the Association of American Publishers, who are protesting the unauthorized copying of in-copyright books by Google.

CAA has prepared a summary article on the Google Library Book Project to better inform you about the issues at stake; included are a brief description of aspects of the settlement and links to articles and editorials from authors and reporters supporting or criticizing the settlement.

CAA’s constituency includes both creators and users of books. The Committee on Intellectual Property has taken up the matter for consideration and is currently considering what position, if any, to recommend.

CAA invites members in the tristate area of New York, Connecticut, and New Jersey to attend an upcoming panel on orphan works, entitled “Lost and Found: A Practical Look at Orphan Works.” The program is free and open to the public, but registration is required.

Lost and Found: A Practical Look at Orphan Works
Tuesday, October 20, 2009
Meeting Hall, New York City Bar Association, 42 West 44th Street, New York

How should the law treat “orphan works”? Please join us as we discuss proposals that would enable copyrighted works to be used when their owners cannot be located to obtain necessary permissions. What should be the obligations of potential users with respect to searching for copyright owners? How should infringement claims be handled if a copyright owner emerges? Do different types of copyrighted works present unique issues? What roles might registries and recognition and detection technologies play? Our speakers will address these and related questions, focusing on orphan images.

June M. Besek, executive director of the Kernochan Center for Law, Media, and the Arts, is the panel moderator. Speakers are:

• Brendan M. Connell, Jr., Director and Counsel for Administration, Solomon R. Guggenheim Foundation
• Frederic Haber, Vice President and General Counsel, Copyright Clearance Center
• Eugene H. Mopsik, Executive Director, American Society of Media Photographers
• Maria Pallante, Associate Register for Policy and International Affairs, US Copyright Office
• Charles Wright, Vice President and Associate General Counsel, Legal and Business Affairs, A&E Television Networks

“Lost and Found” is sponsored by the Art Law Committee (chaired by Virginia Rutledge) and the Copyright and Literary Property Committee (chaired by Joel L. Hecker) of the New York City Bar Association, in conjunction with Columbia Law School’s Kernochan Center for Law, Media, and the Arts.

The International Foundation for Art Research (IFAR), a nonprofit educational and research organization dedicated to integrity in the visual arts, has launched two important resources for the art community on its recently expanded and redesigned website: the Catalogue Raisonné Database and Art Law and Cultural Property.

The Catalogue Raisonné Database comprises two integrated electronic databases—one for published catalogues raisonnés, the other for catalogues in preparation—that can be searched individually or in unison. IFAR asks anyone who is aware of a published or in-preparation catalogue raisonné not included in our database (currently at more than two thousand entries) to contact the organization by clicking on the link “Tell Us about Catalogues Raisonnés” and completing the electronic form.

Art Law and Cultural Property helps users to navigate the mushrooming and complex body of legislation and case law relating to the acquisition, ownership, and authenticity of art objects. The website has two principal components: International Cultural Property Ownership and Export Legislation, with texts in original language and English translation from, currently, more than eighty countries; and Case Law and Statutes, with summaries of legal cases in eight subject areas relating to IFAR’s fields of interest. A section on professional guidelines, a glossary, and images are also included.

These two double the offerings from IFAR’s current online educational resources, which also include Provenance Guide and Collectors’ Corner. CAA maintains its own website resource, Intellectual Property and the Arts.

CAA rounds up several legal issues related to the art and academic worlds.

US Ban on Muslim Scholar

Last week the US Court of Appeals for the Second Circuit reversed a lower court’s decision regarding Tariq Ramadan, a Swiss Muslim professor who was not allowed into the country to teach at the University of Notre Dame. The State Department revoked Ramadan’s visa in 2004 via the USA Patriot Act and then denied another one two years later because he contributed to a charity that was allegedly supporting Hamas, a Palestinian group that is a terrorist group in the eyes of the American government. Ramadan may now be able to dispute this claim, which could reinstate his visa status.

Three groups—the American Academy of Religion, the American Association of University Professors, and PEN American Center—worked with the American Civil Liberties Union on the case. The New York Times has the story on the recent ruling.

Shepard Fairey’s Obama Poster

The photographer whose image was used in Shepard Fairey’s iconic poster of Barack Obama argues that the Associated Press, who is suing Fairey for copyright infringement, does not actually possess the photograph’s copyright. Erik Larsen at Bloomberg has more details.

National Gallery and Digital Images

The National Portrait Gallery in London is threatening a lawsuit against Derrick Coetzee, a Seattle man who downloaded thousands of high-resolution images from the museum’s website and posted many on Wikipedia. In the US, photographs of two-dimensional works of art are not protected by copyright because the photographs lack originality (per Bridgeman Art Library v. Corel Corp from 1999). In the UK, however, there is not a similar legal precedent. The Independent and the Guardian have reported on the developing story.

Baruch College of the City University of New York (CUNY), together with Kognito Solutions, has recently released the Interactive Guide to Using Copyrighted Media in Your Courses. This online tutorial helps college and university faculty determine the appropriate guidelines to follow when using different types of copyrighted media in their courses.

While US copyright law has traditionally allowed for “fair use” for teachers who display and perform copyrighted media during face-to-face teaching, copyright compliancy has become an increasingly complex legal issue as media are increasingly delivered to students online.

Structured as a subway map, the interactive guide asks teachers a series of questions about the nature of the copyrighted works they want to use and how they plan to use them. As each question is answered, users progress through the virtual subway system, learning important copyright rules that apply to their specific situations. At the “final stop,” a list of guidelines for using the copyrighted media is provided.

John Dugan, legal counsel for Baruch College, said, “This guide is a valuable tool that enables faculty to obtain useful, practical advice on copyright issues they may face without confronting the daunting complexities of the copyright law itself.” Baruch’s assistant vice president for technology, Arthur Downing, who initiated the project, said, “We are responding to the needs of academic institutions for a tool that will help and encourage faculty to use media in their courses. This is especially crucial since higher education is increasingly utilizing technology and online delivery components to augment classroom interaction.”

Downing also noted that, while the new learning resource is based on Baruch College and CUNY copyright guidelines, these guidelines are common to many academic institutions and thus applicable for universities across the nation. He further emphasized the need to “continuously enhance this resource with the help of the educational community.”

Other Copyright Resources

Last summer, CAA launched Intellectual Property and the Arts, its own resource for copyright, digital, and intellectual-property issues related to the visual arts. In addition, Information and Library Services at the University of Maryland University College hosts a webpage with a broad range of information on legally using copyrighted materials in classes and on the internet; this information is especially useful for beginners. Reed College also maintains a simpler webpage on using copyrighted materials in academia, with helpful links to information gathered by other schools and organizations.

The deadline for authors and publishers to opt out of a recent class-action settlement regarding the scanning and electronic distributing of in-copyright books by Google is May 5, 2009.

Last October, the Authors Guild, the Association of American Publishers, and Google announced a settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the United States from the collections of a number of major US libraries participating in Google Book Search.

For full details on the settlement and to opt out, please visit www.googlebooksettlement.

The Associated Press (AP) is claiming copyright in the image used by the street artist Shepard Fairey for his famous poster of Barack Obama. Fairey acknowledges that his image is based on a 2006 photograph taken by Manny Garcia while on an AP assignment at the National Press Club in Washington. “The AP says it owns the copyright, and wants credit and compensation,” writes Hillel Italie, a reporter for the news organization. Anthony Falzone, who is Fairey’s attorney, the executive director of the Fair Use Project at Stanford University, and a lecturer at the Stanford Law School, is arguing for fair use.

An exhibition of Fairey’s work opens tomorrow at the Institute of Contemporary Art in Boston, Massachusetts, on view through August 16, 2009.

In related copyright news, a lawsuit was filed in late December against the artist Richard Prince and Gagosian Gallery by the French photographer Patrick Cariou. Prince appropriated photographs from Cariou’s book Yes Rasta from 2000 in his recent exhibition of work; the work was also reproduced in a catalogue published by the gallery. Daniel Grant has the story for the Wall Street Journal.

The Authors Guild, the Association of American Publishers, and Google today announced a groundbreaking settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the United States from the collections of a number of major US libraries participating in Google Book Search. The agreement, reached after two years of negotiations, would resolve a class-action lawsuit brought by book authors and the Authors Guild, as well as a separate lawsuit filed by five large publishers as representatives of AAP’s membership. The class action is subject to approval by the US District Court for the Southern District of New York.

The agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form, by significantly expanding online access to works through Google Book Search, an ambitious effort to make millions of books searchable via the web. The agreement acknowledges the rights and interests of copyright owners, provides an efficient means for them to control how their intellectual property is accessed online, and enables them to receive compensation for online access to their works.

To read more about this landmark settlement, visit the Authors Guild v. Google Settlement Resources Page and the Google Book Search Copyright Settlement. The Chronicle of Higher Education, Inside Higher Ed, the New York Times, and Wired all report on the story.

CAA reminds you that three major museums—the National Gallery and the Victoria and Albert Museum in London and the Metropolitan Museum of Art in New York—have made digital images of works from their collections available for free for scholarly publications.

National Gallery
As part of its ongoing commitment to support scholarship and encourage research into England’s collection of old-master paintings, the National Gallery waives reproduction charges for digital images for use in academic books and journals that meet specific criteria and where orders are processed and delivered via its Picture Library website. Authors publishing academic work relating to the gallery’s collection are encouraged to use high-quality digital images available only from National Gallery Images, where charges will be waived for nonprofit, short-run publications. Discounts are also available for image use in student theses, academic presentations or lectures, and noncommercial private use.

Images are available at A4 and A5 at 300 dpi/ppi. The picture files themselves are derived from fully color-calibrated digital-image files created by the National Gallery. The color is therefore consistent across all images in the collection, meaning image users are able to make informed comparisons about color, tone, and brightness, and be assured of consistent color reproduction through to print.

Victoria and Albert Museum
Since early 2007, the Victoria and Albert Museum in London has ended charging reproduction fees for its images used in scholarly publications. Publishers will be able to download images from the museum’s collection of more than 25,000 works directly from its website.

The museum keeps a broad definition of “scholarly.” The images will be available to students and teachers, as well as to publishers, for use in their research and coursework. The museum will continue to charge commercial publications, but their termination of fees for reproduction may encourage other institutions to follow suit.

Metropolitan Museum of Art
In 2007 the Metropolitan Museum of Art formed a partnership, called Images for Academic Publishing, with the nonprofit digital-image provider ARTstor to offer high-resolution digital images of artworks in its collection for scholarly publication—free of charge. This initiative is intended to make it easier and less expensive for authors and publishers license images for reproduction. Under a special agreement with ARTstor, this service will be available to users—both individual and institutional—who are not ARTstor subscribers.

With this important step in overcoming a longstanding obstacle to scholarly art publication, the museum aims to serve its scholarly mission by disentangling many of its most frequently requested works of art from the burden of permissions paperwork—and from the confusion that often accompanies image rental, artwork copyright, photographic copyright, and licensing. Included are many works whose copyrights have expired (generally, works created before 1923 or whose creators died more than seventy years ago) are in this cluster of images. In some instances, however, third-party copyright permissions may be needed (such as where the underlying work in an image is still under copyright). Other terms and conditions also apply.

More Information
For more information on CAA’s work on digital images, publishing, copyright, and more, please see the Intellectual Property and the Arts section of the website.