query about copyright

Tue May 30 17:48:13 UTC 2006

Dear Anna,

Thanks very much for your message regarding the copyright 
query on lubki. I just want to say that the information you 
received from the Getty Museum, as you presented it in this 
message, is not entirely accurate. It's always difficult to 
consider every aspect of copyright when faced with one 
question. But it is not uniformly the case that 70 years 
after the death of an artist, their artwork becomes public 
domain. That is true for a work created in the U.S. by an 
individual artist after January 1, 1978, but it is not true 
for works created or published before then. Also, other types 
of works (works of corporate authorship, works for hire, 
anonymous works, pseudonymous works) have different copyright 
terms. And foreign works have to be treated more carefully 
because there are many other considerations when determining 
the copyright status. See charts by Laura Gasaway and Peter 
Hirtle:

http://www.unc.edu/~unclng/public-d.htm

http://www.copyright.cornell.edu/training/Hirtle_Public_Domain
.htm

You are right about the difficulties people face in finding 
images to use in publications. But the information you 
received about black-and-white v. color images is misleading, 
becauseit is never really that simple. The statute does not 
speak to use of a black-and-white image or a color image. The 
answer to a question on whether a use violates copyright has 
to be found in the law, or one needs to rely on precedents in 
case law. 

I think the person was trying to say that use of a color 
reproduction will more likely violate copyright than use of a 
black and white reproduction. It’s true that a black and 
white reproduction, as a low-resolution reproduction, a 
thumbnail, a smaller version of a work, etc. will more likely 
be considered a fair use than color, high resolution, full-
size, etc. because it’s not attempting to compete with the 
original work. But it is not true that any use of a black and 
white image will be considered fair use, either. It always 
depends on the situation, and it is always advisable to 
assess all four fair use factors to reach a conclusion on the 
status of the use: purpose of the use, nature of the work, 
amount of the work being used, and effect of the work on the 
market or potential market for the work.

I just felt it was important to clarify this, so that people 
don’t assume that there are black-and-white rules! I think 
it's very good that you brought this up, it really helps the 
discussion. I also want to mention that someone from the 
listserv contacted me to recommend the University of Chicago 
Press website on copyright: 

http://www.press.uchicago.edu/Misc/Chicago/infopage.html

I also like the site of the Stanford University Copyright and 
Fair Use Center: http://fairuse.stanford.edu/

And the University of Texas site is well known for being one 
of the best:

http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

The following book was also recommended: William Germano, 
Getting It Published: A Guide for Scholars and Anyone Else 
Serious about Serious Books (University of Chicago Press, 
2001). To it I will add Kenneth D. Crews, Copyright Law for 
Librarians and Educators: Creative Strategies and Practical 
Solutions, 2d ed. (Chicago: American Library Association, 
2006), and Stephen Fishman, The Copyright Handbook: How to 
Protect and Use Written Works, 8th ed. (Berkeley, Calif.: 
Nolo, 2004)

All the best,

Janice

---- Original message ----
>Date: Wed, 24 May 2006 07:19:50 -0400
>From: Anna Wexler Katsnelson <wexler at FAS.HARVARD.EDU>  
>Subject: Re: [SEELANGS] query about copyright  
>To: SEELANGS at LISTSERV.CUNY.EDU
>
>This has been a truly helpful discussion.
>Here is some more information I found from the Getty 
Institute when faced
>with the issue of wanting to publish reproductions in an 
academic journal:
>
>70 years after the death of an artist, their artwork becomes 
public
>domain. The tricky issue is where you get the images you 
want to
>reproduce. If these are taken from a book there is no 
problem. However, in
>terms of legally reproducing something, it all gets much more
>complicated. For example, when you need  a high quality 
photograph or
>transparency, which you can only usually get by contacting 
the museum
>directly or to the art agency that represents the estate of 
the artist.
>You could contact the Hermitage, say, and ask for a 
transparency
>(the best way to reproduce for publication), and they
>could either lend you one for no cost (if you explain that 
it is a
>scholarly publication, etc.) or sell one to you that you 
could keep. Your
>second option is to go to a photo agency.  Art Resource
>(http://www.artres.com/c/htm/Home.aspx)  is an agency that
>represents foreign museums and sells 
slides/transparencies/photographs of
>art work. They will only sell these (they do not lend); the 
price is
>usually $200. Sometimes the publisher will pay for it but 
usually not for
>periodicals. Moreover, if something has been published 
before 1923, you never need to worry
>about copyright.
>
>Finally, this is what I heard from a person with a lot of 
exprience with
>both images and publishing them: if you are seeking to add a
>black-and-white image there is no concern of fees and 
copyright. These
>come into play only when the image is going to be in color.
>
>
>+++++++++++++++++++++++
>Anna Wexler Katsnelson
>Department of History of Art and Architecture
>Harvard University
>
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Janice T. Pilch, Assistant Professor of Library Administration; Acting Head, Slavic and East European Acquisitions; Librarian for South Slavic Studies, Baltic Studies, and Slavic Languages & Literatures
University of Illinois at Urbana-Champaign 
1408 West Gregory Drive, Urbana, IL 61801 
Tel. (217) 244-9399