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The Samuel H. Kress Foundation has awarded CAA a start-up grant to support the development of a Code of Best Practices for Fair Use of Copyrighted Images in the Creation and Curation of Artworks and Scholarly Publishing in the Visual Arts. The project will address all areas of the visual arts and involve participants from the fields of art history, studio art, print and online publishing, art museums and related areas.

CAA’s Board of Directors recognized the need for the development of a Code of Best Practices by establishing a Task Force on Fair Use at the May 7, 2012 meeting. The rationale for this undertaking is to address what amounts to a crisis in the visual arts field. At this time, there is significant evidence that concerns around the implications of copyright—and especially uncertainty surrounding the fair use doctrine (currently codified under section 107 of the Copyright Act)—is substantially inhibiting the ability of scholars and artists to develop new work requiring the use of images and other third-party copyrighted works. The visual arts field needs the opportunity to explore and better understand copyright and fair use law, come to a consensus on best practices in the use of third-party images, and adhere to a code that is within the law and practicable for visual arts scholarly publications and creative work.

This fall, with the support of the Kress Foundation, CAA will establish a research plan and administrative framework for developing a comprehensive Code of Best Practices for Fair Use. CAA’s newly-created Task Force on Fair Use will begin work with two recognized authorities on the subject: Peter Jaszi, Professor of Law, Washington School of Law, American University and Pat Aufderheide, Director, Center for Media Studies, American University. Jaszi and Aufderheide, the authors of Reclaiming Fair Use: How to Put Balance Back into Copyright (Chicago University Press, 2011) have worked with numerous disciplines—including documentary film makers, dance archivists, research librarians, and journalists—to develop best practices in fair use. CAA’s Task Force will be co-chaired by Jeffrey P. Cunard (CAA Counsel and Partner, Debevoise & Plimpton) and Gretchen Wagner (CAA Committee on Intellectual Property and ARTstor General Counsel); its other members include Anne Collins Goodyear (CAA President and Associate Curator, Prints and Drawings, National Portrait Gallery, Smithsonian Institute); Linda Downs (CAA Executive Director and CEO); Suzanne Blier (CAA Board Member and Allen Whitehill Clowes Professor of Fine Arts and of African and African American Studies, Harvard University); DeWitt Godfrey (CAA Vice President for Committees and Director, Institute for Creative and Performing Arts, Colgate University); Randall C. Griffin (ex-officio as CAA Vice President for Publications, Professor, Division of Art History, Meadows School of the Arts, Southern Methodist University); Paul Jaskot (CAA Past President and Professor of History of Art and Architecture, DePaul University); Patricia McDonnell (CAA Vice President for External Affairs and Director, Wichita Art Museum); Charles Wright (CAA Board Member and Chair, Department of Art, Western Illinois University). Throughout the project, CAA will involve its members and the larger visual arts community in building a comprehensive Code designed to serve all members of its constituency. CAA’s Committee on Intellectual Property will address CAA’s work on Fair Use at its upcoming public session at the Annual Meeting in February 2013 (Saturday, February 16, at 12:30 pm).

 



Intellectual Property and the Arts

posted by Betty Leigh Hutcheson


The Committee on Intellectual Property (CIP) is pleased to announce the posting of the revised and expanded Intellectual Property and the Arts pages on CAA’s website. CIP monitors and interprets copyright legislation for the benefit of CAA’s various constituencies. In so doing, it seeks to offer educational programs and opportunities for discussion and debate in response to copyright legislation affecting educators, scholars, museum professionals, and artists.

The section is divided into the following eight categories: US Copyright: Fundamentals & Documents; Visual Art/Visual Artists; Publishing in the Visual Arts; Libraries, Archives, and Museums; Image Sources and Rights Clearance Agencies; Fair Use Guidelines, Practices, and Policies; Copyright Outside the United States; and Legal Assistance.

Education is essential for informed communication. The committee hopes that the resources presented in the updated pages will answer your questions about intellectual property and inform your discussions and debates.




In accordance with CAA’s practice to regularly update its Standards and Guidelines in the fields of art and art history, the Board of Directors adopted two documents at its meeting on February 26, 2012, that address fair use of visual resources in teaching, scholarship, and libraries.

Christine Sundt, editor of the journal Visual Resources and cochair of CAA’s Committee on Intellectual Property, presented the Statement on the Fair Use of Images for Teaching, Research, and Study, authored and published by the Visual Resources Association (VRA) in 2011, and the Code of Best Practices in Fair Use for Academic and Research Libraries, produced by the Association of Research Libraries (ARL) in 2012.

Fair Use of Images for Teaching, Research, and Study

Visual Resources Association: Statement on the Fair Use of Images for Teaching, Research, and Study is a helpful tool for educators and scholars who rely on images for teaching, research, publishing, and other academic work. The statement describes the six uses of images that fall within the doctrine of fair use according to United States copyright law: the use of images for the purpose of teaching; the preservation and transferring of images from one format to another; the creation of online image resources for students; the use of images by students in the context of the classroom; the sharing of images among cultural or educational institutions; and the inclusion of images in theses and dissertations.

The statement is intended to instill confidence in the scholarly community by clarifying the many educational and academic contexts to which fair use can be applied. The statement, reviewed by a committee of legal experts and copyright scholars who have determined the accuracy of each example of fair use, is by no means exhaustive on the subject of fair use, and it only addresses copyright laws within the United States.

Fair Use of Images for Academic and Research Libraries

The Code of Best Practices in Fair Use for Academic and Research Libraries (2012) describes eight examples of common library practices that are affected by the rules of copyright and fair use. Because the prevalence of digital technologies in higher education has changed the way in which students and faculty use libraries and offer access to academic coursework, the code urges institutions to clarify and update research database systems and to transfer archive material deemed as “at risk items” into a digital format. The code also discusses the need to reproduce library material for disabled students and faculty without bias.

Like the VRA statement, the ARL code does not claim to cover the topic of fair use exhaustively. Rather, its objective is to expand understanding and engagement with copyright laws for librarians and library users. The code was created through the process of interviewing sixty-five librarians across the United States who represented a wide spectrum of academic and research libraries.




This week CAA filed an amicus brief in the case of Golan v. Holder, which the United States Supreme Court will likely hear later this year. The issue raised in Golan v. Holder is whether Congress could, consistent with the First Amendment, remove certain foreign works from the public domain and bring them back into copyright after enacting the Uruguay Round Agreements Act (URAA) of 1994. A lower court, the US Court of Appeals for the Tenth Circuit, held that the URAA was constitutional. When the Supreme Court agreed to hear the case, Jeffrey P. Cunard, CAA’s counsel, was asked if CAA would join several like-minded organizations and individuals in signing onto a brief that would support the importance of the public domain.

The Executive Committee of the CAA Board of Directors considered the importance of the public domain (works no longer in copyright) as a wellspring of resources for artists, scholars, and other creators while discussing the detrimental effect of removing works from the public domain. The committee also noted that a filing by CAA in Golan v. Holder would be consistent with the organization’s filing of an amicus brief in the Supreme Court case of Eldred v. Ashcroft. In that 2003 decision, the court determined that Congress did not violate the First Amendment when it extended the term of copyright through the Sonny Bono Copyright Term Extension Act of 1998. After reviewing drafts of the current brief, the Executive Committee authorized the filing of the Golan v. Holder brief on June 20, 2011.

To learn more about Golan v. Holder and the issues at stake, please review the following articles, published online in March and April 2011:

The principal author of the brief, Jennifer Urban of the Samuelson Law, Technology, and Public Policy Clinic at the University of California’s School of Law in Berkeley, received assistance from Cunard and his firm, Debevoise & Plimpton LLP. Others signing onto the brief include individual writers, musicians, and scholars as well as other organizations. Cunard extends his thanks to Anne Collins Goodyear, curator at the National Portrait Gallery and CAA vice president for Annual Conference, for providing the excellent example of a visual artist, Marcel Duchamp, using a public-domain work, the Mona Lisa, to create a new one (pp. 14–15). The brief also cites other artists, from Pablo Picasso and Jasper Johns to Banksy and Shepard Fairey. In addition, Cunard has noted the extensive reference to CAA’s involvement in the orphan-works proceeding (pp. 33–35), which helps the brief support the proposition that the URAA’s copyright restoration of many foreign works had exacerbated the orphan-works problem.

CAA’s involvement in Golan v. Holder is the latest event in its long history of advocacy efforts regarding freedom of speech and copyright issues. On behalf of all CAA members, the board is grateful to Cunard, one of the nation’s leading experts in copyright law, for the work he has put into the brief and for his continued support of the organization.



Federal Judge Rejects Google Book Settlement

posted by Committee on Intellectual Property


Federal Judge Denny Chin rejected the Google Book Search Copyright Class Action Settlement, better known as the Google Book Settlement, on March 22, 2011. Citing copyright, antitrust, and other concerns, he stated that the settlement went too far and would have granted Google a monopoly over information without the permission of copyright owners. The US Justice Department and other groups were similarly concerned that the settlement would have given Google exclusive rights to profit from so-called orphan works, books whose right holders are unknown or cannot be found. Download a PDF of Chin’s ruling.

The original lawsuit, Authors Guild, Inc., et al. v. Google Inc., had been settled in November 2008 with an amendment approved in November 2009, but this Amended Settlement Agreement will not go forward as stated. Chin left open the possibility for a revised settlement, suggesting that authors opt in rather than opt out. A second class-action suit for copyright infringement brought by visual artists, who had been excluded as plaintiffs in the first suit, is still pending.

Many print and online publications have discussed the decision, its effects, and possible next steps. A selection of recent news and opinion pieces published by the New York Times, the Wall Street Journal, the Chronicle of Higher Education, Slate, and Inside Higher Ed, among others, can be found below. Several articles note that the judge’s decision gives Congress the opportunity to reconsider orphan-works legislation, which CAA has supported in the past. In addition, Roger Darnton, a librarian and professor at Harvard University, and others encourage the creation of a universal digital library, available to all.

Articles and Editorials

Jonathan Band, “A Guide for the Perplexed Part IV: The Rejection of the Google Books Settlement,” Library Copyright Alliance, March 31, 2011, http://www.librarycopyrightalliance.org/bm~doc/guideiv-final-1.pdf.

Robert Darnton, “A Library without Walls,” NYR Blog (blog), New York Review of Books, October 4, 2010, http://www.nybooks.com/blogs/nyrblog/2010/oct/04/library-without-walls/.

Robert Darnton, “Six Reasons Google Books Failed,” NYR Blog (blog), New York Review of Books, March 28, 2011, http://www.nybooks.com/blogs/nyrblog/2011/mar/28/six-reasons-google-books-failed/.

Editorial, “Google’s Book Deal,” New York Times, March 30, 2011, http://www.nytimes.com/2011/03/31/opinion/31thu2.html.

Amir Efrati and Jeffrey A. Tractenberg, “Judge Rejects Google Books Settlement,” Wall Street Journal, March 23, 2011, http://online.wsj.com/article/SB10001424052748704461304576216923562033348.html.

Miguel Helft, “Judge Rejects Google’s Deal to Digitize Books,” New York Times, March 23, 2011, http://www.nytimes.com/2011/03/23/technology/23google.html.

Miguel Helft, “Ruling Spurs Effort to Form Digital Public Library,” New York Times, April 3, 2011, http://www.nytimes.com/2011/04/04/technology/04library.html.

Jennifer Howard, “Judge Rejects Settlement in Google Books Case, Saying It Goes Too Far,” Chronicle of Higher Education, March 22, 2011, http://chronicle.com/article/Judge-Rejects-Settlement-in/126864.

Steve Kolowich, “Google Who?”, Inside Higher Ed, March 28, 2011, http://www.insidehighered.com/news/2011/03/28/usag.

Steve Kolowich, “Please Refine Your Search Terms,” Inside Higher Ed, March 23, 2011, http://www.insidehighered.com/news/2011/03/23/judge_rejects_google_books_settlement.

Claire Cain Miller, “Book Ruling Cuts Options for Google,” New York Times, March 23, 2011, http://www.nytimes.com/2011/03/24/business/media/24google.html.

Jeffrey A. Tractenberg, “Google Book Deal Faces Big Hurdle,” Wall Street Journal, March 24, 2011, http://online.wsj.com/article/SB10001424052748703362904576218951641845230.html.

Siva Vaidhyanathan, “Google Block,” Slate, March 23, 2011, http://www.slate.com/id/2289155.



Google Book Settlement Filing Deadline Extended

posted by Betty Leigh Hutcheson


The official Google Book Settlement website recently posted an update that extends the deadline to file for an upfront payment in the Google Book Search Copyright Class Action Settlement. Authors whose works were scanned by Google on or before May 5, 2009, may be entitled to claim a cash payment once the amended settlement is approved. The former deadline was March 31, 2011. The new deadline is one year after the approval of the settlement—a date yet to be determined.

The lawsuit, titled Authors Guild, Inc., et al. v. Google Inc. (Case No. 05 CV 8136, S.D.N.Y.), was brought by authors and lawyers who claim that by scanning books still under copyright for the Google Books Library Project, Google violated the creators’ rights. The federal court originally approved a settlement to the lawsuit in November 2008, and then preliminarily approved an amended settlement in November 2009.

A second class-action suit for copyright infringement was brought against Google in April 2010 by visual artists excluded as plaintiffs in the first suit, including the American Society of Media Photographers, several other photography associations, the Graphic Artists Guild, and independent photographers and illustrators. The outcome of this case (No. 10 CV 2977, S.D.N.Y.) will be determined after the settlement of the first case.

What does the extended deadline mean for authors and publishers? According to the Google Book Settlement website, if “you did not previously opt out of the Original Settlement and do not opt out of the Amended Settlement, you are ‘in’ the Amended Settlement,” and you can claim your copyrighted material. The website contains all documents related to the settlement and forms and instructions for registering your work. The Authors Guild also publishes updates about the settlement.

CAA will publish an additional notice once the new deadline is established.



Two Back-to-Back Conference Sessions on Intellectual Property

posted by Betty Leigh Hutcheson


CAA will highlight intellectual property and copyright in two back-to-back sessions at the 2011 Annual Conference. First, CAA’s Committee on Intellectual Property will host an informal, participatory session on the rapidly changing world of copyright as it affects the work of contemporary artists and scholars. A second panel, part of the regular conference program, will trace the evolution of intellectual property since ancient times. Both sessions will take place on Friday, February 11, 2011, at the Hilton New York, the conference headquarters hotel. The first will be held in Petit Trianon, Third Floor (12:30–2:00 PM); and the second moves to Gramercy A, Second Floor (2:30–5:00 PM).

For the committee-sponsored “Copyright, CAA, and the Next Century,” the session cochairs—Ken Cavalier, an art historian and lawyer based in British Columbia, and Christine Sundt, editor of Visual Resources: An International Journal of Documentation—will facilitate discussion about today’s critical issues. Open to the public, the session allows attendees to speak freely on issues they think CAA should address, or that are starting to brew regarding copyright in the United States and Canada. Cavalier and Jeffrey Cunard, CAA’s counsel, will serve as legal experts and guides, and committee members will be on hand to answer questions. CAA is especially interested in how it can improve coverage of intellectual-property issues on its website, in its conference sessions, and in outreach efforts, as well as how the organization can define its leadership role (and work with other groups) to advocate copyright legislation that benefits the artistic community.

For the program session, “Intellectual Property in the Visual Arts, Antiquity through Early Modern,” Beth Holman, an independent scholar and the session’s chair, will shift the focus from print and print privileges to shed light on other strategies of asserting and protecting intellectual property. Kristen Seaman of Kennesaw State University will talk about “Ancient Greek Theories of Authorship and the Creation of Art History,” and Giancarla Periti of the University of Toronto will speak on “Authorship and Early Modern Manuscript Collections of Antiquarian Artifacts.” Moving forward chronologically, C. Jean Campbell of Emory University will discuss “Working Knowledge: Ownership and the Representation of Inventive Capacity in Early Renaissance Art,” and Alexandra Hoare of the Center for Advanced Study in the Visual Arts will address “‘Né tocchi mai da nessuno’: Salvator Rosa’s Contribution to Seventeenth-Century Concepts of Intellectual Property.” Ken Cavalier will serve as the session’s discussant.




Several organizations, including the American Society of Media Photographers, the Professional Photographers of America, and the Graphic Artists Guild, have filed a class-action lawsuit against Google, claiming that by scanning millions of books the internet company has infringed on their members’ copyrights and failed to compensate them for their work.

According to Miguel Helft of the New York Times, the new lawsuit is separate from the Google Book Settlement between the company and a consortium of individuals and authors’ organizations. That decision is pending in the US District Court for the Southern District of New York. Helft writes, “Google’s settlement with authors and publishers largely excluded photographs and other visual works. Legal experts said it was not unexpected that Google would face claims from groups that were not part of the original case and are not covered by it.”




The Office of the Intellectual Property Enforcement Coordinator (IPEC), a federal agency in the Executive Office of the President, seeks opinions on how the federal government should enforce copyrights and handle infringements. In a two-part survey, IPEC not only solicits written submissions about economic costs associated with intellectual-property violations, but also requests specific recommendations on how such violations can be dealt with. All comments should be sent by email.

Public Knowledge, a digital-issues interest group based in Washington, DC, writes, “The request for comments seems geared to take in complaints from big media companies and other major holders of copyrights, patents, and trademarks,” but also that it is “open to everyday consumers, citizens, and members of the public.”

An area that art historians may wish to address, for example, is the way that copyright controls on images have made it difficult for electronic texts to include copyrighted art images. For artists, an area of concern is the high cost of registering copyright in a visual image, and lack of good bulk registration tools at the US Copyright Office for visual-image rights holders.

Read more about the issue on the Public Knowledge website, which also includes a sample letter that you can tailor to your needs. Deadline: 5:00 PM on March 24, 2010.




The Association for Information and Media Equipment, a group of educational film and video producers and distributors dealing with copyright issues related to libraries, universities, and media centers, has threatened to sue the University of California, Los Angeles for streaming copyrighted video content on course websites. UCLA is claiming fair use, but the issue—involving royalty payments, academic-subsidized research, and current copyright law—is much more complex.

Steve Kolowich of Inside Higher Ed reports that negotiations between the organization and the school are private, and a debate about the legality of libraries making digital copies of DVDs it owns for wider dissemination to students has arisen. In his article Kolowich talks to librarians, professors, and media-industry experts to provide a larger, if not clearer, picture of what is at stake.

February 5 update: J. B. DeVries of Academic Impressions discusses policy issues when dealing with streaming video.




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