Submitted by Tom Bower bowert@nmah.si.edu, January 2001
for use at the CAA/NINCH Copyright Town Meeting, March 3, 2001
to be held in conjunction with the Annual Meeting of the College Art Association at Chicago.

This is a draft document intended to accompany Tom Bower's Copyright Town Meeting Presentation. Readers are invited to critique the document and make suggestions online or during the appropriate discussion period.

INFORMATION TO HELP REDUCE IMAGE USE FEES

Using images for personal research does not require paying fees to the holders of the intellectual property rights in the images. While many writers do pay fees to museums, archives, and libraries for image use rights in scholarly publications, some of these fees may prove to be unnecessary. If the organization providing the image knew more about how the image was to be used, these charges might easily be waived.

If there is little or no income from a product or publication and the purpose is scholarly, frequently the fee will be nominal or waived entirely. Authors should expect that an image used as an illustration in a scholarly article in a non-commercial journal with a distribution of under a few thousand copies should not be charged the same rate as a full color illustration for the cover of a glossy coffee table book with little text.

Below is a form for requesting publication rights that has been developed for use by scholars and teachers. This form, which may easily be adapted for specific purposes, can be used to give the image provider vital information on how the requester will use the image. The form includes a statement of the elements of "fair use." The more accurate the information provided, the easier it is for an image provider to make a fair judgement about fees.

One would think that when a scholar contracts with a publisher or distributor, the task of rights acquisition would be the responsibility of the publisher or distributor. But it doesn't always work this way; not infrequently, it is the academic author who gets stuck with the task of rights management -- and even with the responsibility of paying for permissions.

Providing the information requested in the form below to the rights-holding institution will increase the chances that a fee will be suitable to the defined use. Authors should note that commercial rights-holding organizations and, more frequently now, public organizations will provide an image for research with the contractual understanding that it can not be published without their further permission. The "permission" is obtained by the payment of a fee or receipt of a waiver.

But not all image suppliers can also bestow publication rights. It is wise, therefore, always to confirm with the source of an image that they own the rights for the work and the image. Permission may have to come from multiple individuals or organizations. The image-holder may be able to tell you who owns or manages the rights to the image, but they may not.

If the user has access to a satisfactory image that is not encumbered by contractual conditions, "fair use" provisions of the present US copyright laws, may allow for certain types of use without the need to request permission or payment of a fee. Charges for production and delivery of the photograph/image itself are separate from this discussion.

Works of art in the public domain may be published without permission if the requisite photograph is not encumbered itself by copyright or by contract. Note that photographs of public domain works taken in museums by authors may not be free to publish if the taking of the photograph violated an implicit or stated understanding governing the use of photographs taken within museums.

To acquire permission to publish or distribute an image from a museum, library, archive, etc, the process would be speeded and the basis for reaching an accurate charge would be simplified, if an individual would provide to the rights-holder as much of the following information as possible:

• object and rights identification
  a) name of the maker or creator, b) title, c) accession or collection number, d) donor name, e) source where image was seen, f) a photocopy of the image, if available, g) other rights holders if needed.
  
• user information
  a) contact name, b) organization, street and electronic addresses, telephone and fax numbers. c) Commercial status of the product and firm which will produce/distribute the product - commercial, non-profit/non-commercial entity, or an individual.
  
• proposed use
  Be as specific as possible. Describe the publication or product and means of production and distribution. Will it be used in a book, journal article, Intranet or Internet display, commercial television broadcast, feature film, etc.? Will delivery to the end-user be via a commercial means (sold to the public for a profit) or through non-commercial means (given away for free or for a nominal charge)? How many copies will be created? What will be the cost of product/publication to the purchaser? For film or video, how long will the image be presented and for how long a period will the product be distributed? For Internet display, what portion of a screen size and resolution will the image occupy and for what period of time will it be distributed or displayed? Into how many languages or countries will the product be translated or distributed(e.g. English language and world-wide rights, or English and Spanish for US distribution only)? Will the image be for non-editorial (use on a cover or with little more than an identifying caption) or for editorial use (where the text informs readers about the image)? A publication with more limited audience and increased ratio of text to images is frequently charged a lower fee.

If you are in doubt, but think the proposed image use substantially meets the U.S. statutory requirements of "fair use," be certain to state why you think so and ask for the fee to be waived. The fair use requirements are as follows:

• the purpose and character of the use (Uses that are more commercial in nature are less "fair" than nonprofit, educational uses.)
• the nature of the copyrighted work. (Fiction has more protection than nonfiction, except where first publication of an original work is concerned.)
• the amount of the whole being used. (How much of a work or of the body of work is being copied. The more of the whole being copied, the less chance there will be that the use will be considered fair. For images, since it is usually necessary to reproduce a work in its entirety, it is more difficult to claim fair use in images. But there are arguments to the contrary.)
• the effect on the market for the original. (Copying an out of print or low resolution image is more "fair" than copying one that is readily available in thee marketplace. But the statute asks the fair user to consider the "potential" effect on the market for the original.)

IMAGE PUBLICATION USE REQUEST FORM

(To be adapted by individuals)

To: (Rights holder)

I wish to use the image of the following object(s) for the following purpose (not for personal research). Please advise me about the appropriate fee charged for such use or if the fee may be waived for institutional or "fair use" purposes.

Object and Rights Identification

Name of maker/creator:

Object Title:

Accession, catalog, or collection number;

Donor name:

The source where image was seen:

(I have/have not included a photocopy of the image.)

To Image rights holder:

Please provide a credit line for the image and rights and, if needed, any additional contact information.
If you are not the rights holder for the object, please provide me with the name and address of the rights holder.

User Information:

Contact name:

Organization name:

Address:

Telephone: Fax: E-mail:

Producer/Distributor Information (if different)

Contact name:

Organization name:

Address:

Telephone: Fax: E-mail:

The producer/distributor is

====	____	An Individual	===	____	An Organization
	____	Commercial		____	Non-commercial
	____	Academic		____	General Audience

Proposed Use

The image will be used for:

====	____	a non-editorial use (on cover of publication, CD/video, etc. or with little more than an identifying caption)
	____	an editorial use (the text informs one about the image).

The publication/product will be:

====	___	a book
	___	a journal article
		___	pages in length
		___	number of copies/edition size
	___	an Internet display
		___	percent of screen for Internet display
		___	period of time for display
	___	a commercial television broadcast
		___	time on screen
		___	number of times to be shown or distribution period
	___	feature film
		___	time on screen
		___	number of times to be shown or distribution period
	___	video
		___	time on screen
		___	number of copies to be produced
		___	years of planned distribution

The means of delivery to end user will be via:

====	___	commercial means (sold to the public for a profit)
	___	non-commercial (given away for free or for nominal charge)

For all uses, list the countries for distribution and/or the languages for distribution or worldwide (e.g., English language and world-wide rights or English and Spanish for US distribution):

Fair Use Request

I request that all usage fees be waived because in my opinion the proposed use substantially meets the criteria of "fair use" as defined in US statute as described below.

====	___	purpose and character of the use (Use is more nonprofit educational than commercial) Provide criteria.
	___	nature of the copyrighted work (Use is more non-fiction than fiction. It is out of print and not the first publication of an original work) Provide criteria.
	___	amount (Relatively little of the work is copied -- a detail or for paintings or prints only a very limited number of an artist’s works in small format will be reproduced) Provide criteria.
	___	effect on the market for the original (Original image is out of print or proposed product will show low resolution images, not of a quality to be confused with the original) Provide criteria.