Steal This
Image
Museum
and Art Book Publishers Wander in Copyright's Wild West
FROM PUBLISHING
TRENDS (DECEMBER 2001)
If
every picture tells a story, Mitch Tuchman has heard
them all. As head of publications at the Los Angeles
County Museum of Art (LACMA) for 13 years, Tuchman
produced 68 volumes for copublication or trade distribution,
wrangling permission to print thousands of images from
artists and their heirs. Groping through the byzantine
legalese of contracts for the likes of Toulouse-Lautrec
and David Hockney, on the one hand, and noting certain
of his colleagues’ cavalier duplication of transparencies
on the other, Tuchman stumbled onto an unsettling truth:
“The atmosphere of ignorance with regard to picture
rights is pretty alarming at some major institutions.”
In the jaunty 1980s, to take just one instance, a group
representing artists’ rights wrote to Tuchman demanding
fees for images used in a LACMA exhibition catalog.
Uncertain of his obligations, Tuchman queried his trade
copublisher. “Wait and see if they send another letter,”
the reply came back. “We’re in the habit of ignoring
these people, and they usually just go away.”
Today, Tuchman says, this advice would be viewed at
best as quaint. “Everybody is more wary about claims
of copyright,” he explains. Yet even though much has
changed, perplexity over copyright law persists, resulting
in Medusa-like indemnity clauses that sprout from copublishing
contracts everywhere. These paragraphs are “a little
battle or minuet where each side is trying to allocate
the risk of publishing these images to the other side.
Neither one is taking the responsibility of knowing
about these issues.” Tuchman, now in the intellectual
property practice group at Womble Carlyle Sandridge
& Rice, has vowed to meet copyright law head-on.
What’s at stake for both museums and publishers, say
others familiar with licensing issues, is not merely
legal peace of mind. As the costs of permissions can
soar into the tens of thousands of dollars, and even
seasoned publishers refer to licensing as “a morass,”
the livelihood of big chunks of the art book business
is on the table.
“The
costs have gone up for everyone,” says Peter Warner,
US President of illustrated publisher Thames &
Hudson. “If you’re producing a large book with hundreds
of images, keeping the overall budget at a rational
level can be difficult. And there are times when, because
of its cost, you do feel you are leaving out a picture
you would have put in otherwise. You have to make those
tough choices more often than not.” Others in the industry
are worried about both their bottom lines and the larger
consequences, too. “Some estates and artists are making
it too difficult to publish their work,” says a book
packager. “If Picasso and Matisse had been as restrictive
as some artists and estates are today, they’d never
be as famous or as influential.”
Indeed, the road to publish images is veritably paved
with tollbooths. A celebrity photo may require separate
clearances from both the photographer and the celebrity.
Then you might get dinged for cropping an image, putting
it up on a website, or putting it on a postcard. Museums,
which must seek permission to publish images they do
not control, even as they exploit licenses for work
in their own collections, are acutely feeling copyright
pains. “Even into the ’90s, museums felt that if they
owned a work of art, they could do whatever they wanted
to with the image of it,” says Garrett White,
Director of Publications and New Media at the Whitney.
“Now, everyone knows that’s not true. Ownership of the
object and copyright are separate. And that has driven
the price of books up very substantially. It means certain
types of books are no longer possible to create.”
‘Strip
Mining the Obituaries’
In
another tale from the trenches, Tuchman once faced clearing
rights to hundreds of works by scores of known and anonymous
artists for the LACMA exhibition catalog Exiles and
Emigrés: The Flight of European Artists from Hitler.
Copyrights held by the estates of 14 of the artists
were administered in the US by Artists Rights Society
(ARS). For nonexclusive, worldwide, English-language
publication rights, says Tuchman, ARS quoted a fee of
$18,000. But when he protested that sum, “the price,
which I suspected was arbitrary, dropped to $9,000 in
a heartbeat.” Other contingencies crop up, as well.
When LACMA sought to reproduce a work by the late Swiss
artist Jean Crotti on the cover of an exhibition catalogue,
a rights group claiming to represent Crotti came knocking.
Yet Crotti’s sole heirs “claimed never to have heard
of that society and certainly not to have engaged its
services. Incidents like this lead publishers to accuse
the clearinghouses of strip mining the obituaries.”
Theodore
Feder, President of ARS, replies that while he was
unfamiliar with the details of Tuchman’s transaction,
the fee for worldwide use is typically double that for
North American use, and a distinction between territorial
rights could account for the $18,000 being halved. He
also notes that ARS will negotiate a volume discount
when large numbers of images are involved, and that
fees are reduced drastically for truly academic publishing.
“I can’t think of any case where we’ve demanded a fee
which blocked the publication of an image,” he adds.
“We prefer to make it workable for both us and the publishing
house.” Other groups representing artists’ rights acknowledge
that the business has its quirks. “This industry has
some unique problems,” says Bob Panzer, Executive
Director of the Visual Artists and Galleries Association.
“Publishers are willing to pay for images. But when
they’re forced to pay twice — when the source of the
image charges them a fee equal to the fee they would
normally pay for standard stock photography — it gets
very expensive.”
And even with rights groups going to bat for them, some
artists are still getting a raw deal, says Peter
Howe, a longtime photo editor formerly with stock
agency Corbis. Photographers in particular remain
vulnerable under current law. “Unless you have registered
a copyright on a picture, you do not have the ability
to sue a violator of your copyright for anything other
than actual damages,” Howe explains. “If your licensing
fee is $75, and your photo is unregistered, that means
you can only recoup that amount of money. There aren’t
a lot of people who will pursue a lawsuit for $75.”
Fortunately, he finds book publishers to be among the
most scrupulous traffickers in images. “I am now producing
a book for Workman, and we go through everything
in detail,” he says. “We work out the licensing budget
for the photography before we even start the project.”
The devil, of course, is in those very same details.
“I’m amazed that books dealing with 20th-century artists
get published at all,” says Susan Bielstein,
Senior Editor at the University of Chicago Press,
citing the travails of working with living artists.
But even the so-called “good and dead” artists can prove
meddlesome. Bielstein licensed a book with drawings
from the 18th and early 19th century from a French publisher,
which provided film for the images. Since the works
were in the public domain under every applicable country’s
copyright laws, Bielstein assumed they were good to
go. “Not five minutes after the book was published,”
she says, “we hear from a major museum in New York City
which claims that one of the drawings is in its collection.”
The museum demanded a fee, upon penalty of suspending
business relations with the entire University of Chicago.
Bielstein paid the fee.
Museums are themselves in a double bind. Technically,
images of art in a museum catalog would qualify as educational
fair use, says Mikki Carpenter, Director of Imaging
Services at the Museum of Modern Art. “At the
same time, we have to negotiate to use these images
and pay considerable amounts of money because we want
to maintain good relationships with artists.” Complicating
matters further are digital databases of images such
as the Art Museum Image Consortium (AMICO) or
the Mellon’s ArtSTOR initiative, which
is digitizing images of fine art for scholarly and research
uses. ArtSTOR Executive Director James Shulman
observes that anyone treading into the realm of digital
reproductions needs to keep a wary eye on the teetering
terrain. “It’s definitely a wild west territory, and
the legal decisions haven’t clarified very much.”
Indeed, a federal court hearing the 1998 Bridgeman
Art Library case found that transparencies of public
domain art were not protected by copyright, directly
contradicting museums’ claims of control over images
of objects from their collections. But museums are standing
their ground. “Museum publishers tend to apply an extralegal
standard,” says Susan Chun, General Manager for
Electronic Information Planning at the Metropolitan
Museum of Art. “We assume that when reproductions
are made of works of art, those reproductions are copyrighted
works themselves.” As for the grumbling by trade publishers
about museum reproduction charges, Chun says: “Believe
me, museums are not getting rich off of this. Permissions
costs may appear to be rising because when fewer art
books sell, the per-unit permissions costs are higher.”
However you slice it, the spiraling costs of publishing
art books have spurred a sort of grassroots demand for
an alliance of museums and publishers that would swap
information about licensing fees and draw its own lines
in the sand. Though such an entity would surely spawn
more reams of case law, there’s no hiding from the fact
that licensing transactions in today’s trademarked world
are only going to get more, well, unseemly. “You can
license a building, and you can probably license your
children to Coca-Cola,” says Garrett White. “It has
more to do with the gradual commodification of everything.”
©2001
Publishing Trends
