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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).

 

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.

Recent CAA Advocacy

posted by June 18, 2012

CAA’s advocacy efforts this year addressed a wide range of issues of critical importance to the visual arts, from the necessity of artists to have affordable health-insurance options, to the ethical treatment of animals in works of art, to the ins and outs of copyright law and museum practices. Below is a summary of eleven issues to which CAA has been committed during the past twelve months.

In June 2011, CAA filed an amicus brief in the case of Golan v. Holder, which the United States Supreme Court began hearing in October. The issue raised in Golan v. Holder is whether Congress, after enacting the Uruguay Round Agreements Act of 1994, could legally remove tens of thousands—if not millions—of foreign works from the public domain and bring them back into copyright. Consistent with the First Amendment, the brief argued that those works should remain freely available. On January 18, 2012, the Supreme Court affirmed a lower court’s previous decision, 6–2. In short, foreign works formerly in the public domain in the US can have their copyrighted status reinstated.

In December 2011, CAA signed onto a statement from the Association of Art Museum Directors that opposed the pending sale of a fifty percent stake in the Alfred Stieglitz Collection of Modern American and European Art at Fisk University in Nashville, Tennessee. Since 2005 the school had been attempting to sell the collection, donated by Georgia O’Keeffe (who specified that it never be sold or broken up). “Such an action,” stated the letter, “would violate a core professional standard of AAMD and of the museum field, which prohibit[s] the use of funds from the sale of works of art for purposes other than building an institution’s collection.” Nevertheless, the Tennessee Supreme court did not block the sale to Crystal Bridges Museum of American Art in Bentonville, Arkansas, on April 25, 2012. The university and museum will share the collection on a three-year rotating basis, with the museum helping to conserve the collection.

CAA board and staff members represented the organization at two events this spring in Washington, DC: Anne Collins Goodyear, then-incoming board president, and Linda Downs, CAA executive director and chief executive officer, attended Humanities Advocacy Day in March; and Judith Thorpe, an outgoing board member, and Helen Bayer, CAA marketing and communications associate, went to Arts Advocacy Day in April. The goal of both days was to support continued federal funding through the National Endowment for the Humanities and the National Endowment for the Arts, and to articulate to Congress the vital importance of the humanities and the arts in higher education. The National Humanities Alliance’s annual meeting coincided with Humanities Advocacy Day. Goodyear and Downs have offered a summary of this important event.

At the request of People for the Ethical Treatment of Animals (PETA), CAA investigated the use of homing pigeons in Jon Rubin’s interactive artwork, Thinking about Flying (2012), on view this year at the Museum of Contemporary Art in Denver, Colorado. The piece invites museum visitors to take home a bird, placed in a cardboard box, for a day before releasing it, so that it may fly back to the museum. CAA confirmed the humanitarian treatment of the birds by the artist and museum and notified PETA of the findings.

In April, CAA investigated the complaint raised by several artists who lent work to the 2010 World Festival of Black Artists and Cultures in Senegal that was not returned due to a dispute with an art shipper in Dakar. CAA determined that the situation did not need the organization’s assistance.

Michael Fahlund, CAA deputy director, testified on behalf of the organization at an oversight hearing convened by New York City’s Committee on Cultural Affairs, Libraries, and International Intergroup Relations on January 25, 2012, regarding increasing access to affordable health insurance for artists. Even though CAA is an international organization, its office is in the state of New York; presently the healthcare industry is regulated state by state. Fahlund proposed that CAA be given “employer status” in relation to its members living in New York State in order to provide health-insurance options for them. The committee’s discussions are ongoing.

CAA monitored a federal bill, the Research Works Act (H.R. 3699), that was introduced in the US House of Representatives on December 16, 2011, by Rep. Darrell Issa (R-CA) and cosponsored by Rep. Carolyn Maloney (D-NY)— chairman and member, respectively, of the House Committee on Oversight and Government Reform. The legislation would prohibit federal agencies from mandating free access to scholarly articles submitted to a scientific or scholarly publication without the consent of the publisher. This act primarily addresses science and technology publications but, if enacted, could affect art and humanities publications as well. Many learned societies who are publishers oppose the legislation, and CAA board members have begun discussing the issue and are paying close attention to the legislation’s development.

Representing CAA, Fahlund contributed his expertise to a National Coalition Against Censorship committee that developed Museum Best Practices for Managing Controversy, published in May. The document offers guidance for institutions to turn controversial situations into learning experiences for their public. The committee comprised representatives from the American Association of Museums, the Association of Art Museum Directors, the Association of Art Museum Curators, Columbia University, Arizona State University, the University of Washington, and the New School. CAA’s Museum Committee is reviewing the guideline and will present it for adoption at the CAA board meeting on October 28, 2012.

Fahlund also worked with a liability insurance broker, Herbert L. Jamison and Co. LLC, and Philadelphia Insurance Companies, and with two CAA members, Barbara Buhler Lynes and Nancy Mowll Mathews, to establish comprehensive, affordable liability insurance for art historians and artists who authenticate works of art. Such insurance would help defend against a damaging financial loss that could occur from alleged mistakes or negligence. CAA does not administer the insurance but acts as a referral to the insurance company; in a brief article from this past January, Fahlund offers helpful loss-prevention tips for the art professional to avoid potential workplace liabilities.

Last month CAA signed onto a letter from the Association of Art Museum Directors sent to Congress, urging legislators to pass the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 2212), a proposed law that would shield a loaned work of art from a non-US collection from being seized by anyone with a claim to legal ownership while the art is on display in the country. According to the letter, the US has “long provided the crucial legal protection that helps make loans from foreign museums possible” through the Department of State, until a 2004–8 lawsuit involving heirs of Kasimir Malevich and the City of Amsterdam weakened those protections. The House passed the bill (H.R. 4086), which the Senate is now debating.

As a member of the Coalition on the Academic Workforce, a group that addresses workforce issues in higher education, CAA helped to prepare and administer a 2010 survey on contingent-faculty issues. The results have been tabulated and will be distributed soon. More than one thousand CAA members filled out the survey. [June 20 update: the survey results have been published.]

Founded as an advocate for the visual arts in higher education, CAA actively engages matters of public policy, litigation, and activism at the local, state, federal, and international levels. For further information, visit the Advocacy section of the website. If you have questions or have advocacy issues you would like to bring to the attention of the CAA board, please contact Anne Collins Goodyear, CAA president, and Linda Downs, CAA executive director and chief executive officer, at info@collegeart.org.

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.

Professional liability insurance is essential for art authenticators, appraisers, scholars, artists, curators, and other practitioners in the field of visual art and art history. In today’s increasingly litigious environment, professionals are often subject to lawsuits brought by unhappy clients or other parties who feel they have been harmed by the actions—or inactions—of individuals who worked for them. The financial consequences of such suits, including the costs to defend them, can be devastating. As a result, it is critical that professionals recognize their exposures to financial losses and adopt effective means to deal with them.

Herbert L. Jamison & Co. LLC, a provider of professional liability programs, and Philadelphia Insurance Companies are now offering a comprehensive, affordable professional liability insurance solution to art authenticators to help defend against a damaging financial loss that could occur from alleged mistakes or negligence in conducting professional, fee-based services. Though premiums vary depending on circumstances, the annual premium of one policy—which insures an individual engaged in authenticating works up to $500,000 in value—is $1,000 with a $2,500 deductible.

Several key benefits of this program are:

  • Automatic independent-contractor coverage for professional services while acting on the insured’s behalf
  • Defense costs in addition to the limit of liability for eligible risks
  • Policy coverage for a lawful spouse or domestic partner of the insured, but only for actual or alleged wrongful acts of such individual insured for which said spouse or domestic partner may be liable as the spouse or domestic partner of such insured
  • Tailored policy to meet the specific need(s) of clients
  • Free sixty-day discovery clause
  • Worldwide coverage

Sometimes insurance protection is not enough. The art professional must establish and maintain a loss-prevention program that will help minimize the chance of a professional liability claim being brought in the first place. Examples of effective loss-prevention techniques that can be adopted include:

  • Establishing the fees and/or billing practices at the beginning of a client relationship
  • Using engagement letters, contracts, and other means to precisely identify the scope of the services to be performed
  • Keeping written documentation of all activity, including telephone calls, billing calculations, and the like
  • Participating in peer reviews, when feasible
  • Avoiding situations that present conflicts of interest
  • Obtaining appropriate credentials and certifications and taking continuing-education courses to remain current regarding developments in the profession
  • Screening new clients carefully and keeping existing clients informed at all times
  • Avoiding giving specific warranties and similar performance guarantees

A well-designed combination of insurance and loss prevention will go a long way in managing the potential liabilities that art professionals must face as they deliver their services to their clients.

CAA recommends that interested individuals contact Kevin J. Hill, vice president at Herbert L. Jamison & Co. LLC, at 973-669-2388 or 800-5264766, ext. 2388.

Filed under: Legal Issues

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 if Congress could, consistent with the First Amendment, remove certain foreign works from the public domain and bring them back into copyright when it enacted 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.

CAA is the principal national and international voice of the academic and professional community in the visual arts; the organization was founded on the principle of advocating the visual arts and actively continues that engagement today (see The Eye, The Hand, The Mind: 100 Years of the College Art Association, edited by Susan Ball). The principal goal of CAA advocacy is to address issues of critical importance in the visual arts that benefit artists, art historians, and museum workers and to inform the public.

CAA specifically advocates change and improvements in these areas:

  • Government funding for the arts and humanities
  • Freedom of expression and against censorship
  • Intellectual-property rights
  • Preservation of the artistic integrity of public spaces
  • Higher education and technologies to facilitate distance learning
  • Philanthropy for the arts and humanities
  • Tax policy as it applies to CAA members
  • Conditions in universities, museums, and other workplace environments of CAA members

CAA cosponsors and regularly sends representatives to the annual Arts, Humanities, and Museum Advocacy Days in Washington, DC. Email petitions are requested of CAA members throughout the year when legislation is being considered in Congress related to specific issues. This year’s advocacy message to Capitol Hill focused on maintaining the funding levels of the National Endowment for the Arts and the National Endowment for the Humanities.

Recent issues related to freedom of expression and censorship on which CAA has taken a public position include:

  • Incarceration of the Chinese artist Ai Weiwei
  • Removal of David Wojnarowicz’s video from the Hide/Seek exhibition at the National Portrait Gallery
  • Proposed removal of the John T. Biggers mural at Texas Southern University
  • Removal of the Department of Labor mural in Augusta, Maine
  • Adrian Piper’s placement on the Transportation Security Administration Watch List
  • Supreme Court amicus brief in support of petition for review regarding artists whose vehicular artwork was removed by the City of San Marcos, Texas
  • Supreme Court amicus brief asserting the unconstitutionality of a federal law criminalizing the depiction of animal cruelty in United States v. Stevens

In addition, CAA has been involved in intellectual-property rights, as described below.

Orphan Works

CAA participated actively in US Copyright Office proceedings to study orphan works and, thereafter, actively supported legislation—yet to be passed by Congress—that would require users to conduct work-by-work, due-diligence searches to identify and find the copyright holder. If that search failed to identify or find the copyright holder, the work could be used without the threat of injunctive relief or statutory damages. If the copyright holder emerges after the work has been researched and used, he or she could still sue the user for copyright infringement, but a losing defendant would only be required to pay the normal license fee; the proposed legislation includes a safe harbor for museums that removed works expeditiously. It is unclear if any orphan-works legislation will be reintroduced in this or subsequent Congresses. After the March 2011 decision of Judge Denny Chin of the US Court of Appeals Second Circuit rejecting the settlement of the Google Books litigation, CAA’s counsel was approached by Public Knowledge (“a D.C. public interest group working to defend citizen’s rights in the emerging digital culture”) asking if CAA remained interested in orphan-works legislation and, if so, to sign a letter to Congress requesting that orphan-works legislation be reintroduced.

Cost for Reproducing Images of Artwork in Museum Collections

In recent member surveys, one of the most critical issues articulated was the high cost of reproduction rights of works in museum collections that are not under copyright. CAA has requested formal attention to this issue from the Association of Art Museum Directors.

Fair Use

CAA’s Committee on Intellectual Property, chaired by Doralyn Pines and Christine Sundt, is reviewing and proposing revisions to the Intellectual Property in the Arts section of the CAA website. The committee will also review a draft set of fair-use guidelines being prepared by the Art Law Committee of the New York Bar Association and the Visual Resources Association; after such review, the CAA Board of Directors may be asked to endorse the updated guidelines.

Extension of Copyright Term

CAA signed a Supreme Court amicus brief regarding the retroactive application of the extension of copyright term in Eldred v. Ashcroft. The Copyright Term Extension Act of 1998 was challenged with the original complaint filed on January 11, 1999. CAA was an amicus when the case was brought to the Supreme Court, which held on January 15, 2003, that the Copyright Term Extension Act of 1998 was constitutional (see the March 2003 CAA News).

Artist-Museum Partnership Act

CAA actively supports the Artist-Museum Partnership Act, which establishes fair-market-value tax deductions for works given by artists instead of the current limitation to cost of materials. Information on the progress of the Artist-Museum Partnership Act is published in the weekly CAA News email, posted in the Advocacy section of the website, and communicated to the Services to Artists Committee. If and when a bill is subject to a vote in Congress, CAA will urge all members, affiliated societies, and committees to contact their representatives.

Coalition on the Academic Workforce

CAA is a member of the Coalition on the Academic Workforce, which recently prepared a survey of contingent faculty. Over 30,000 individuals completed the questionnaire—many were CAA members—and the results will be tabulated this spring. Information on all aspect of working conditions is included in this survey and will assist in informing future standards and practices. CAA’s Professional Practices Committee and Education Committee are kept informed of the survey and its tabulation and will analyze the results and determine action to take that will benefit CAA members. Contingent faculty is currently responsible for 76 percent of teachers in American colleges and universities. CAA supports equitable hiring, representation, and benefits for this growing segment of the faculty.

How It Works

How does advocacy work at CAA? CAA both monitors advocacy issues and is approached by universities, colleges, organizations, and individuals who raise issues via CAA’s counsel, officers and members of the board, executive director, deputy director, affiliated societies, or other partner organizations such as the National Coalition Against Censorship, the Association of Art Museum Directors, or the associations of the American Council of Learned Societies. If an issue warrants action and is consistent with the advocacy policy, CAA will prepare a response. Depending on the importance and complexity of the issue, CAA will prepare an email, letter of support, or statement; cosign a letter with other organizations; or, in exceptional circumstances when legal action is required, prepare an amicus brief or support proposed legislation. All advocacy issues brought to CAA’s attention are reviewed by the counsel and the executive director. Consistent with the organization’s Advocacy Policy, the Executive Committee and, if necessary, partner organizations also review the issues. Important matters where legal action is involved will be brought to the board.

At the February 2011 board meeting, Andrea Kirsh, then vice president for external affairs, volunteered to work as CAA’s advocacy coordinator. She has since actively assisted in carrying out research and drafting letters and statements. CAA members who would like to be informed of the organization’s advocacy efforts—and spread the word—can send an email to nyoffice@collegeart.org.

Lucille A. Roussin, an attorney with a background in art history, reports on a recent daylong program that took place at the Cardozo School of Law in New York on March 31, 2011. The first two paragraphs are below; you may also read the full article.

Human Rights and Cultural Heritage: From the Holocaust to the Haitian Earthquake

The Benjamin N. Cardozo School of Law at Yeshiva University in New York hosted an all-day conference, entitled “Human Rights and Cultural Heritage: From the Holocaust to the Haitian Earthquake,” on March 31, 2011. The program brought together experts in both human-rights law and Holocaust-era restitution law. Its organizers also invited specialists in the same areas who had not previously engaged this important topic.

The program commenced with opening remarks by Allan Gerson, chairman of AG International Law PLLC, a Washington, DC–based law firm specializing in complex issues of international law and politics. During his talk on “Civil Litigation to Secure Cultural Property as a Human Right,” he spoke of the continuing debate over the existence of a recognized human right to secure restitution of cultural property and, when a victim is deprived of actual possession, the right to just compensation. Gerson included news about his current litigation against the Metropolitan Museum of Art over Paul Cézanne’s Madame Cézanne in the Conservatory (1891) and Yale University over Vincent van Gogh’s The Night Café (1888). Both cases involve major issues in international law, including the Act of State Doctrine and the Foreign Sovereign Immunities Act.

Read the full article in the Features section.

Filed under: Cultural Heritage, Legal Issues

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.

At Arts Advocacy Day 2011, CAA representatives from five states—Connecticut, Georgia, Pennsylvania, New York and Texas—will meet congressional staff to advocate for the visual arts in higher education. Organized by Americans for the Arts, of which CAA is a member institution, the annual event will take place April 4–5, 2011, in Washington, DC. CAA delegates will address the following issues of critical importance and invite you to register and get involved.

As the leading association in the world that represents professional visual-arts practitioners, CAA endorses government support of creativity and innovation that has made this country great.

CAA seeks support for artists and art historians who work in colleges, universities, and art museums, as well as for independent artists and scholars. The federal government must support professionals in the visual arts like it does for practitioners and scholars in other arts, such as dance and music. The professional practice, study, and teaching of the visual arts deserve further support because of the power these disciplines have to educate, inspire, and stimulate independent thinking.

CAA also believes that public and private partnerships should expand not only between schools and communities but also among the academic community in colleges, universities, and art schools.

CAA fully endorses the creation of an art corps comprising professionally educated artists and art historians who will work with students in urban schools on community-based projects, raising an awareness of the importance of creativity and professional artists. CAA also encourages government-sponsored projects such as Americorps and Vista to emphasize the visual arts. Young artists are eager to work on environmental programs that involve community-organized design projects such as, for example, mine-reclamation endeavors in which community recreation centers are established near cleaning pools for toxic mine runoff to help redevelopment the land.

CAA would like to emphasize that, in order to champion publicly the importance of arts education, America must support the preparation of artists and art historians who teach on a primary, secondary, and college/university level. The visual arts are integral to core curricula in each grade and at every stage of education.

CAA fully supports increased funding for the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute for Library and Museum Services. Specifically, professional artists must supported on individual bases. CAA strongly recommends that the NEA reinstate Individual Artist Fellowships, so that visual artists can pursue and develop their work. Similar grants in other areas of the arts and humanities far exceed federal and private foundation grants to professional visual artists, who are often forced to abandon their own work to support themselves and their families. Professional artists desperately need government support.

CAA supports legislation to change tax laws for artists. The organization has worked hard—and will continue to work hard—to support the Artist-Museum Partnership Act, first introduced by Senator Patrick Leahy (D-VT) in 2005. The proposed act would amend the Internal Revenue Code to allow artists to deduct the fair market value of their work, rather than just the costs of materials, when they make charitable contributions. Not only has the current tax laws been harmful to artists, the creative legacy of a whole generation of American visual artists has been lost.

In addition, CAA supports legislation that would allow scholars to publish so-called orphan works, which are copyrighted works—such as books, pictures, music, recordings, or films—whose copyright owners cannot be identified or located. The House of Representatives and Senate has previously introduced orphan-works bills, and CAA hopes Congress will pass one in the coming session. The lack of clear laws and procedures regarding the issue has prevented many art historians from publishing orphan works, causing a great detriment to scholarly publishing and research.

CAA supports cultural diplomacy by enhancing international opportunities, through agencies such as the United States Information Agency, for professional visual artists and art historians to exhibit, teach, research, and lecture. CAA’s international membership testifies to the promotion of cultural understanding that occurs through international cultural exchange. Every year CAA seeks funding to support the travel of international art historians and artists to our Annual Conference. Current Homeland Security laws and a lack of government funding make it difficult for foreign art historians and artists to present their work and research at conferences, symposia, and exhibitions. CAA endorses streamlining the visa process and providing government support for international exchanges of graduate students and professional artists and art historians.

CAA supports providing healthcare to independent artists and scholars—a major concern for those professionals who are not associated with a college, university, or art museum and who attempt to work on their own to support themselves. Each state creates its own health-insurance legislation, and thus differences in laws regulating insurance companies prohibit professional organizations such as CAA from offering national healthcare coverage.