[MCN-L] rights question
The IP SIG meeting in Portland is going to consider the possibility of getting together and working on a fair use best practices for museum collections, along the lines of what the documentary film makers have done: http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf. Other "industry groups" have banded together as well: there's safety in numbers and consensus (if you can reach it) and it might be a way for us not to have to reinvent the wheel at each institution. Deb Wythe Brooklyn Museum deborahwythe at hotmail.com > Date: Wed, 16 Sep 2009 12:46:03 -0400 > From: RealW at CarnegieMuseums.Org > To: mcn-l at mcn.edu > 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 > > -Original Message- > From: mcn-l-bounces at mcn.edu [mailto:mcn-l-bounces at mcn.edu] On Behalf Of > Eve Sinaiko > Sent: Tuesday, September 15, 2009 4:02 PM > To: 'Museum Computer Network Listserv' > Subject: Re: [MCN-L] rights question > > > > > On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: > > > > We are evaluating our policy regarding obtaining rights for images of > > works we publish in our online collection section. The issue of what > > to do with works where there is an apparent copyright holder that can > > either not be contacted or does not respond to repeated permission > > requests. Does anyone have a position of what to do regarding works > > in this particular state of limbo? > > > > Bill Weinstein > > > Bill, legally if you do not have permission, you may not use the work. > > There is no mechanism in US copyright law to help you. However, if > > you are based in Canada, there is an unlocatable copyright owner > > provision which can help you just in that circumstance. And it is > > possible that you can use it if using a Canadian work (though I would > > have to double check to see who is eligible if you are not in Canada.) > > > > Lesley > > > > Lesley Ellen Harris > > lesley at copyrightlaws.com > > www.copyrightanswers.blogspot.com > > > I think this is an incomplete answer. I'm not a lawyer, so I can only > speak to how many publishers and museums are addressing this question in > practical terms, on the ground. If I've gotten any of the legal aspects > wrong, please correct me. > > There are two kinds of "in limbo" works: 1) Those known still to be in > copyright or probably in copyright (because they are not very old), for > whom no rights holder can be found; and 2) those whose rights holder > ignores repeated efforts to obtain permission. > > The first group are Orphan Works (OWs)--works still in copyright for > whom no known rights holder can be found. Congress has been working on > legislation to deal with OWs for several years. Last year the Senate > passed an OW bill, but the House version died. It's uncertain whether > the bill will be revived any time soon or not. Absent an OW law, users > must consider whether they may assert fair use. (At museums, a common > type of OWs are archive photos of objects, where the object is out of > copyright but the photo is not, the photographer's name is missing, and > the museum has no document to indicate that the photo was made as a work > for hire.) > > The second group includes works where the copyright holder has been > found and i
[MCN-L] rights question
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 t
[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.[Fo
[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 -Original Message- From: mcn-l-bounces at mcn.edu [mailto:mcn-l-boun...@mcn.edu] On Behalf Of Eve Sinaiko Sent: Tuesday, September 15, 2009 4:02 PM To: 'Museum Computer Network Listserv' Subject: Re: [MCN-L] rights question > > On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: > > We are evaluating our policy regarding obtaining rights for images of > works we publish in our online collection section. The issue of what > to do with works where there is an apparent copyright holder that can > either not be contacted or does not respond to repeated permission > requests. Does anyone have a position of what to do regarding works > in this particular state of limbo? > > Bill Weinstein > Bill, legally if you do not have permission, you may not use the work. > There is no mechanism in US copyright law to help you. However, if > you are based in Canada, there is an unlocatable copyright owner > provision which can help you just in that circumstance. And it is > possible that you can use it if using a Canadian work (though I would > have to double check to see who is eligible if you are not in Canada.) > > Lesley > > Lesley Ellen Harris > lesley at copyrightlaws.com > www.copyrightanswers.blogspot.com I think this is an incomplete answer. I'm not a lawyer, so I can only speak to how many publishers and museums are addressing this question in practical terms, on the ground. If I've gotten any of the legal aspects wrong, please correct me. There are two kinds of "in limbo" works: 1) Those known still to be in copyright or probably in copyright (because they are not very old), for whom no rights holder can be found; and 2) those whose rights holder ignores repeated efforts to obtain permission. The first group are Orphan Works (OWs)--works still in copyright for whom no known rights holder can be found. Congress has been working on legislation to deal with OWs for several years. Last year the Senate passed an OW bill, but the House version died. It's uncertain whether the bill will be revived any time soon or not. Absent an OW law, users must consider whether they may assert fair use. (At museums, a common type of OWs are archive photos of objects, where the object is out of copyright but the photo is not, the photographer's name is missing, and the museum has no document to indicate that the photo was made as a work for hire.) The second group includes works where the copyright holder has been found and is not responding, or works where it's not absolutely clear who the rights holder really is (e.g., two different nephews of a dead artist both claim to own the rights, or a work by an artist may have been made while he was on staff somewhere and therefore be a work for hire). For the second group, as for the first, fair use may be an option. One also has to evaluate whether the use one wants to make of the work is protected under fair use (or in the UK, under fair dealing). The Stanford Fair Use Project has a very good, clear rundown of fair use and how it works: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/ind ex.h tml Fair use depends on the context of the use, so institutions should develop guidelines on fair use in consultation with legal counsel--both for using works in their own collections and for when others use works whose copyrights you control. In the last couple of years there have been some important court decisions strengthening the assertion of fair use for visual images. Thus, it's not always the case that one must not publish a work because the rights have not been cleared. Especially in the case
[MCN-L] rights question
> > On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: > > We are evaluating our policy regarding obtaining rights for images of > works we publish in our online collection section. The issue of what > to do with works where there is an apparent copyright holder that can > either not be contacted or does not respond to repeated permission > requests. Does anyone have a position of what to do regarding works in > this particular state of limbo? > > Bill Weinstein > Bill, legally if you do not have permission, you may not use the work. > There is no mechanism in US copyright law to help you. However, if > you are based in Canada, there is an unlocatable copyright owner > provision which can help you just in that > circumstance. And it is possible that you can use it if using a > Canadian work (though I would have to double check to see who is > eligible if you are not in Canada.) > > Lesley > > Lesley Ellen Harris > lesley at copyrightlaws.com > www.copyrightanswers.blogspot.com I think this is an incomplete answer. I'm not a lawyer, so I can only speak to how many publishers and museums are addressing this question in practical terms, on the ground. If I've gotten any of the legal aspects wrong, please correct me. There are two kinds of "in limbo" works: 1) Those known still to be in copyright or probably in copyright (because they are not very old), for whom no rights holder can be found; and 2) those whose rights holder ignores repeated efforts to obtain permission. The first group are Orphan Works (OWs)--works still in copyright for whom no known rights holder can be found. Congress has been working on legislation to deal with OWs for several years. Last year the Senate passed an OW bill, but the House version died. It's uncertain whether the bill will be revived any time soon or not. Absent an OW law, users must consider whether they may assert fair use. (At museums, a common type of OWs are archive photos of objects, where the object is out of copyright but the photo is not, the photographer's name is missing, and the museum has no document to indicate that the photo was made as a work for hire.) The second group includes works where the copyright holder has been found and is not responding, or works where it's not absolutely clear who the rights holder really is (e.g., two different nephews of a dead artist both claim to own the rights, or a work by an artist may have been made while he was on staff somewhere and therefore be a work for hire). For the second group, as for the first, fair use may be an option. One also has to evaluate whether the use one wants to make of the work is protected under fair use (or in the UK, under fair dealing). The Stanford Fair Use Project has a very good, clear rundown of fair use and how it works: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.h tml Fair use depends on the context of the use, so institutions should develop guidelines on fair use in consultation with legal counsel--both for using works in their own collections and for when others use works whose copyrights you control. In the last couple of years there have been some important court decisions strengthening the assertion of fair use for visual images. Thus, it's not always the case that one must not publish a work because the rights have not been cleared. Especially in the case of those OWs where it's pretty clear that there is no living rights holder, publication may be very low-risk. Fair use and fair dealing are US- and UK-specific, and some institutions are concerned that in the internationalized realm of the Internet such laws may not fully protect uses. A practical approach to the problem that some websites and publishers adopt is to make every effort to obtain all permissions, and document the efforts, and then to publish the works with a notice that states: "The museum has made all reasonable efforts to ascertain the rights status of all works reproduced on this website. Any corrections should be sent to the attention of [name/digital rights administrator]." Or: "All reasonable efforts have been made to identify and contact copyright holders but in some cases these could not be traced. If you hold or administer rights to works posted here, please contact us. Any errors or omissions will be corrected." Such disclaimers are becoming more common and at a minimum are useful in demonstrating the publisher's good faith. If a rights holder should come forward and object to the use, prompt removal of the image may be sufficient remedy. In other words, in crafting a policy for the use of works where it's not possible to obtain permission, an institution, in consultation with counsel, should to consider several things: ~Develop guidelines for doing a proper fair-use assessment in individual cases and develop a protocol so that all staff who are responsible for rights clearance know how to make a good assessment (and when to consult counse
[MCN-L] rights question
Just a reminder that permissions are not required for any use of work that is "fair" under U.S. law, or similar law of other jurisdictions. The question of use of orphan works -- if that is what is being raised -- *may* be different, but only if the use is NOT fair. All fair uses are OK whether a work is orphaned or whether a known copyright holder objects -- including in situations where one may actually have already requested permission and been denied. However, it is true that currently there is no provision in U.S. copyright law that offers any safe harbor for use of orphan works that is not fair. That's a pity where such a use might increase distribution of the work to the larger public benefit. Let's hope we get some good legislation to cover those situations. Best regards, Virginia --- On Mon, 9/14/09, Lesley Ellen Harris wrote: From: Lesley Ellen Harris Subject: Re: [MCN-L] rights question To: "Museum Computer Network Listserv" Date: Monday, September 14, 2009, 1:06 PM Bill, legally if you do not have permission, you may not use the work. There is no mechanism in US copyright law to help you.? However, if? you are based in Canada, there is an unlocatable copyright owner? provision which can help you just in that circumstance.? And it is possible that you can use it if using a? Canadian work (though I would have to double check to see who is? eligible if you are not in Canada.) Lesley Lesley Ellen Harris lesley at copyrightlaws.com www.copyrightanswers.blogspot.com On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: We are evaluating our policy regarding obtaining rights for images of works we publish in our online collection section.???The issue of what to do with works where there is an apparent copyright holder that can either not be contacted or does not respond to repeated permission requests.? Does anyone have a position of what to do regarding works in this particular state of limbo? Bill Weinstein ___ 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/ ___ 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/
[MCN-L] rights question
Bill, legally if you do not have permission, you may not use the work. There is no mechanism in US copyright law to help you. However, if you are based in Canada, there is an unlocatable copyright owner provision which can help you just in that circumstance. And it is possible that you can use it if using a Canadian work (though I would have to double check to see who is eligible if you are not in Canada.) Lesley Lesley Ellen Harris lesley at copyrightlaws.com www.copyrightanswers.blogspot.com On Sep 14, 2009, at 2:29 PM, Weinstein, William wrote: We are evaluating our policy regarding obtaining rights for images of works we publish in our online collection section. The issue of what to do with works where there is an apparent copyright holder that can either not be contacted or does not respond to repeated permission requests. Does anyone have a position of what to do regarding works in this particular state of limbo? Bill Weinstein ___ 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/
[MCN-L] rights question
We are evaluating our policy regarding obtaining rights for images of works we publish in our online collection section. The issue of what to do with works where there is an apparent copyright holder that can either not be contacted or does not respond to repeated permission requests. Does anyone have a position of what to do regarding works in this particular state of limbo? Bill Weinstein
