VRA 2012, Fair Use Guidelines Q&A, Statement on the Fair Use of Images
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THE VISUAL RESOURCES ASSOCIATION: STATEMENT ON THE FAIR USE OF IMAGES FOR TEACHING, RESEARCH AND STUDY Presentation by Gretchen Wagner General Counsel & VP of Administration for ARTstor Member and former co-chair of VRA IP committee
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Presented by Gretchen Wagner at the Annual Conference of the Visual Resources Association, April 18th - April 21st, 2012, in Albuquerque, New Mexico.Session: Fair Use Guidelines Q&A ForumFair use provides the right to make certain uses of images and other copyrighted materials without seeking permission from, or paying fees to, the copyright owners of those materials. However, many in the educational and cultural heritage communities are uncertain how to apply fair use in actual practice. The VRA Intellectual Property Rights Committee has created a Statement on the Fair Use of Images for Teaching, Research and Study to provide guidance to the VRA community on when it is appropriate to rely on fair use and to document our long-standing community practices in this area. The Committee believes that, as with other communities’ statements of fair use, documentation of these community practices and principles will help the community of educational and scholarly image users rely on fair use with greater confidence. This panel discussion will present the Fair Use Guidelines and answer such questions as: Do I need to seek permission in order to reproduce and display images for teaching purposes? Can I rely on fair use in posting images on a course website or other online study materials? Must I receive clearance in order to publish images in a dissertation or thesis? Can I rely on fair use in order to preserve image materials in other formats? Do I need to seek permission in order to share images with other educational and scholarly institutions? It will also provide a behind-the-scenes look at the careful process by which the VRA Guidelines have been formulated and vetted by expert legal opinion. The panel will be followed by ample opportunity for audience members to ask questions relating the principles and procedures set forth in the Guidelines to their own situations. MODERATOR: Allan T. Kohl, Minneapolis College of Art & Design SPEAKERS: Cara Hirsch, Deputy General Counsel, ARTstorGretchen Wagner, General Counsel, Secretary, and Vice President of Administration, ARTstor
Transcript of VRA 2012, Fair Use Guidelines Q&A, Statement on the Fair Use of Images
THE VISUAL RESOURCES ASSOCIATION:STATEMENT ON THE FAIR USE OF IMAGES
FOR TEACHING, RESEARCH AND STUDY
Presentation by Gretchen Wagner General Counsel & VP of Administration for ARTstorMember and former co-chair of VRA IP committee
Why the Statement: Ongoing Uncertainty Around Fair Use
What the Statement Is and Is Not
IT IS:• About Still Images• About Teaching, Research and Study• About US law
IT IS NOT:• NOT about contracts or digital rights management• Not about TEACH Act• NOT about public domain
Does not Define Outer Boundary of Fair Use
Builds On Knowledge Of “Wise Ones”
Ju• Existing Extensive Work Done by
Allan Kohl and Christine Sundt and other members of IPR Committee that had already gathered evidence and documented practices (e.g., DIRC)
• Draws on longstanding experiences and documentation at many conferences
• Draws on research of community practices that ARTstor did when it was relying on fair use (obtained much info from the “wise ones”)
Anonymous, Portrait of a Scholar or Preacher, Walters Art Museum
Legal Advisory CommitteeRobert W. Clarida (previously Cowan, Liebowitz & Latman; now Reitler, Kailas, and Rosenblatt)
Jeffrey P. Cunard (Debevoise & Plimpton)
Jackie Ewenstein (Ewenstein & Young)
Georgia K. Harper (Scholarly Communications Advisor, The University Libraries, University of Texas at Austin)
Virginia Rutledge (PIPE Arts Group; Former Creative Commons General Counsel)
Jule Sigall (Associate General Counsel – Copyright, Microsoft; Formerly Associate Register for Policy & International Affairs, U.S. Copyright Office)
1st Part of Statement: Lists Fair Use Factors and How Law Applies in this Context (Legal Argument without Case Law)
• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit
educational uses; • The nature of the copyrighted work; • The amount and substantiality of the portion of the
work used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.
• Increasingly: Good faith
Second Part of Statement Describes Community Practices:Over a Century of Relying on Fair Use
Permissions Often Impossible to Obtain
Left: Pendant Mask, Nyoba, Metropolitan Museum of Art; Right: Thomas Eakins, The Writing Master, 1882, Metropolitant Museum of Art.
Exclusions and Suggestions
• Express exclusion for “photographer-vendor images” (those licensed to educational institutions for teaching)
• Other suggestions made in each of the six use case scenarios. Not required for fair use, but may help strengthen fair use argument and demonstrate good faith.
Preservation
Mummy of Ukhhotep, The Metropolitan Museum of Art
Teaching (in person and online)
Baltimore Museum of Art, photography
Course websites
Adaptations
Andy Warhol, Campbell’s Soup Cans, © The Andy Warhol Foundation for the Visual Arts, Inc.
Sharing Images Across Campuses for Teaching and Research
Dissertations and Theses
W.A. Rogers, We are Against His Politics but We Like His Grit, Library of Congress
How to Move Forward:
Share with Your Counsel
Share with Other “Gate Keepers”
Share with Faculty
Share with Others (ground swell for fair use statements)
Female Figure, creator unknown, © Metropolitan Museum of Art
