Submission Date:
Question:
We are planning to put together a public page with information on various artworks donated to our university. We'd like to post an image of the art, information on where it is on campus, information on the artwork itself, etc.
Our question is with regard to copyright. I know the artist still holds the copyright, so my question is whether there is an exception to the copyright law that will allow us to post an image of the artwork for these purposes? We're looking into adding a watermark to the image and setting it to not allow users to save the image directly (although we know they could still take a screenshot).
Thank you in advance for your advice!
Answer:
This sounds like a great project…a public page providing a guided tour of art throughout the campus, with maps, information, and pictures to help the viewer find the works.
But you’re right, if they haven’t expired, the rights are still the property of the artist—or their heirs, or any third party they were sold to. And the digital image you create could infringe those rights.
There is no one catch-all “exception” to copyright that completely avoids this, but there are some steps you can take to keep your institution on the safer side of the law.
Here they are, in descending order of strength and certainty:
1. Verify that the works are actually still protected by copyright. Anything from before 1923, for instance, is no longer protected. If you want to showcase 50 works, and 25 of them are from before 1923 [1], you’ve just reduced your concerns by half!
2. If your campus has an art registrar (a position distinct from an admissions registrar, but with a similar flair for detailed record-keeping), ask them if the donation came with any assignment or license of copyrights. Sometimes, the donor—especially if they were the artist—will give limited duplication and display rights for purposes of promoting the work. While by no means a certainly, it is worth checking out.
3. If the rights are still valid and no license has been obtained previously, it is possible to ask for permission now. A simple letter—perhaps sent in coordination with your department for Institutional Advancement—could ask:
Your lovely work, TITLE, was donated to our university in YEAR. We are hoping to secure your permission to duplicate the work so we can show a full-color reproduction on our website. The image would be used to illustrate an online and print guided tour that showcases our more valued works of art, including TITLE (the “Work”).
If you still own the copyrights and can give permission, please check one of the circles below, sign in the space below, and return this letter in the accompanying self-addressed, pre-stamped envelope:
o I hereby license the university to use the Work without any restrictions, in any medium whatsoever, for any purpose whatsoever.
o I hereby license the university to duplicate, publish and display the Work solely for the use described in this letter, in both print and via the internet, with no further restrictions or conditions.
o I hereby license the university to duplicate, publish and display the Work per the following terms:_________________________________________________ ______________________________________________________________.
Thank you for considering this courtesy to our university.
Very truly yours,
[YOUR NAME]
ACCEPTED AND SIGNED:________________________
[ARTIST NAME]
on __________________
DATE
4. “Claiming Fair Use,” version 1: This takes advantage of the formula for using a copyrighted work without permission, created by Section 107 of the Copyright Act. Here’s what you do: carefully write out a description of your initiative, and why it is important that the public know of and have a visual cue be able to find these works. Then take a photo of each artwork…not head-on and alone, but at an angle and with a live person—perhaps a student—interacting with the work. Make sure the art is not duplicable from the digital image, and make sure that image is more about the person viewing the work, and its location, than the art itself. Generate a description of this image that speaks to what is happening in the photo, including how people interact with the work. Include not only the image, but these observations in your guide, letting people know they can see the actual work in person. Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages [2].
5. “Claiming Fair Use” Version 2: This is also an approach under 107. Generate very low-resolution, watermarked images as described in the member’s question, and again, document the value of being able to use a limited visual element to help people find that specific work. Have a lawyer review it, and then retain the documentation, because even if it is later found that your use is infringing, a not-for-profit educational institution’s good-faith belief that is was fair use can mitigate damages.
And there you have it: no magic bullet, but some options that, if combined, can help you create an infringement-free, beautiful guide to the art on your campus. Of the five options, “1,” “2,” and “3” are by far the most prudent, so try those first, and then, only if you need to, consider options “4” and “5.”
I hope fate is kind, and some of your artworks pre-date 1923, or their owners are generous and easy to find. Good luck!
[1] When "Ask the Lawyer" started in 2016, the author was not thinking about how, just a few years later, the "Public Domain" date would change. To preserve this shameful lack of foresight, but also ensure accurate information, as part of the "2021 ATL Audit" we are adding this footnote: Please substitute "1923" with [whatever year it is minus 95]. For instance, if it is 2021, the year should be 1926. When in doubt, visit the excellent chart at https://copyright.cornell.edu/publicdomain.
[2] 17 U.S.C. 504(c)(2)
