One thing you should include would be notice that if the artist or heir does not want the work on line that they contact you and you would remove the image.
Frank E. Thomson, Curator Asheville Art Museum PO Box 1717 Asheville, NC 28802 fthomson at ashevilleart.org www.ashevilleart.org 828.253.3227 tel 828.257.4503 fax Celebrate 60! Raffle tickets now on sale! Click here to find out more! -----Original Message----- From: mcn-l-bounces at mcn.edu [mailto:mcn-l-boun...@mcn.edu] On Behalf Of Eve Sinaiko Sent: Wednesday, September 16, 2009 2:02 PM To: 'Museum Computer Network Listserv' Subject: Re: [MCN-L] rights question > Hi everyone, > > This is a timely discussion for us as we are looking ahead to a redesign > of our web site and online collection. > > I believe that a few museums have taken the position that publishing > copyrighted images, in "thumbnail" size only, on their online > collections, is fair use. I don't know if they publish thumbnails of > copyrighted works only after a reasonable effort to secure permission, > or whether they simply publish them without asking. I believe they > arrived at their policy with legal counsel. > > I don't think there is any commonly-accepted definition of what > constitutes a thumbnail that would pass a fair use test (100 pixels? 250 > pixels?). > > I'd be interested to hear your opinions: is this approach is an emerging > trend in the museum field, and/or is there is an emerging understanding > in the field regarding what a "thumbnail" is? > > Our own legal counsel has suggested that it would be difficult to make > generalized policies about which images could be published under this > kind of approach; they recommended we consider each case on its own > merits--not exactly what we were hoping to hear. In many ways it boils > down to a risk assessment. > > Will Real > Carnegie Museum of Art > Pittsburgh PA In my experience as a print publisher of art images, your counsel is right, because fair use is always case-specific and contextual. As a result, I don't think the courts are going to establish a definition of "thumbnail" or "full-size," although one recent decision does give an example of the size of a "typical" thumbnail (see below). Further, it's important to remember that pixel size and resolution aren't the only means of determining fair use--an image may in many cases be published under fair use even if it is very large and very high-res--depending on the context of the use. Conversely, a small thumbnail might in some unusual situation not be fair use. Nevertheless, there are at least 3 appeals court decisions that affirm that thumbnails (however measured) have a strong fair use claim. Although they don't define the word, they use similar language--small size and reduced resolution. I think it's also worth noting that "full size" is as ambiguous a term as "thumbnail." What is a non-thumbnail/full-size image of the Mona Lisa? The size of the scan of the original painting? The size of the screen that views it? Courts on the whole are not looking at technical measures like pixels or dpi; from case to case the scale of an image might differ and fair use still be asserted successfully, depending on the other factors. Still, here's some language from three of the most relevant court decisions: Kelly v. ArribaSoft (2003) http://homepages.law.asu.edu/~dkarjala/cyberlaw/KelllyvArriba%289C2003%29.ht m: "To provide this service, Arriba developed a computer program that "crawls" the web looking for images to index. This crawler downloads full-sized copies of the images onto Arriba's server. The program then uses these copies to generate smaller, lower-resolution thumbnails of the images. Once the thumbnails are created, the program deletes the full-sized originals from the server. Although a user could copy these thumbnails to his computer or disk, he cannot increase the resolution of the thumbnail; any enlargement would result in a loss of clarity of the image." Perfect 10 v. Google (2007) http://fairuse.stanford.edu/primary_materials/cases/perfect10google.pdf: [Footnote 4]: "A "thumbnail" is a lower-resolution (and hence, smaller) version of a full-size image. Thumbnails enable users to quickly process and locate visual information. For example, users of Google Image Search are presented with a set of thumbnails that are potentially responsive to their search queries. Because thumbnails are smaller in size, more of them can be displayed at the same time on a single page or screen. Users can quickly scan the entire set of thumbnails to locate the particular full-size image for which they were looking. P10 repeatedly objects that the term "thumbnail" is a misnomer, even going so far as to point out that the thumbnails displayed by Google can be up to eight times the size of a person's actual thumbnail. Pl.'s Zada Reply Decl. ? 54. "Thumbnail," it argues, conveys the false impression that smaller, lower-resolution images are not useful in and of themselves-or that they are less useful than their full-size counterparts. The term "thumbnail," however, has become the standard way of referring to the smaller, lower-resolution images central to this suit. In any event, the Court recognizes that thumbnails have been used for purposes independent of their primary function, as is discussed later. See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d 811, 815 (9th Cir. 2003)." and "Whether thumbnails are identical copies of their full-size counterparts is debatable. A thumbnail contains significantly less pixel data (and hence, less image detail) than does the full-size image.[Footnote13] The more complex or nuanced the original full-size image, the less exact is the replicated viewing experience-i.e., at some point viewers can no longer discern many of the fine details that were once visible in the full-size image. On the other hand, thumbnails are not "cropped" in any way, and if few or no important details have been lost, they do convey the full expression-they achieve pretty much the same effect-as the original full-size images. Merely because Google's thumbnails are not cropped does not necessarily make them exact copies of P10's images, but the record currently before the Court does suggest that the thumbnails here closely approximate a key function of P10's full-size originals." and [Footnote 13]: "For example, a typical full-size image might be 1024 pixels wide by 768 pixels high, for a total of 786,432 pixels worth of data. A typical thumbnail might be 150 pixels wide by 112 pixels high, for a total of only 16,800 pixels. This represents an information loss of 97.9% between the full-size image and the thumbnail." Bill Graham Archives v. Dorling Kindersly (2006) http://ftp.resource.org/courts.gov/c/F3/448/448.F3d.605.html: "This conclusion is strengthened by the manner in which DK displayed the images. First, DK significantly reduced the size of the reproductions. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-20 (9th Cir. 2003) (finding online search engine's use of thumbnail-sized images to be highly transformative). While the small size is sufficient to permit readers to recognize the historical significance of the posters, it is inadequate to offer more than a glimpse of their expressive value. In short, DK used the minimal image size necessary to accomplish its transformative purpose." Setting aside fair use, I've noticed that in recent years some rights holders are comfortable giving permission for an online digital image, even a large one, if it is low resolution, and will grant permission for a 70 dpi scan to be used but not a zoomable high-res scan. Though that doesn't have any direct bearing on a fair use position, it seems to be a trend. The argument is that a high-res scan can be pirated and used for commercial purposes (e.g., making posters), but a low-res scan can't be reused so easily. (Down the line I think that view will be tested because high-res zoomable scans are the future of art education and will be needed online.) As Will says, most of this is about risk assessment, so each institution should look at these trends and establish some baselines: smaller images are usually safer; images with inactive or unknown rights holders may be safer; takedowns may be necessary, leaving holes in online content, etc. Regards, Eve Sinaiko _______________________________________________ You are currently subscribed to mcn-l, the listserv of the Museum Computer Network (http://www.mcn.edu) To post to this list, send messages to: mcn-l at mcn.edu To unsubscribe or change mcn-l delivery options visit: http://toronto.mediatrope.com/mailman/listinfo/mcn-l The MCN-L archives can be found at: http://toronto.mediatrope.com/pipermail/mcn-l/
