RE: fees for fair use in books

MessageIf the institution is providing you with an actual image, photographic or digital, they are providing you with their "property" and are entitled to charge for its use. They have cost in producing and distributing the image. In essence they are renting you the image. If they claim copyright in their particular image, they can "license" that right also.

Whether there is a copyright in their image is up to debate. The copyright case, Bridgeman v. Corel, says that a straight on photo of a two dimensional work of art does not have in and of itself enough inherent originality to qualify for copyright. On the other hand, a photo of a sculptural piece may have the requisite originality. Presuming the underlying work is under copyright, the rights holder - which is not lot likely to be the institution, but rather the artist or an estate - in the work also be involved. Unfortunately, many institutions use the words "license" and
"rights" when the words "use/usage: and "rental" would be more accurate.

I think the bigger question is whether or not your uses are actually "fair uses". VAGA, which represents rights for over 6000 artists and artists' estates worldwide routinely licenses reproduction rights for its members works in "scholarly" publications. We believe dissertations are generally fair use, but do not feel the same way about books sold by publishers. Admittedly, this is a very sensitive and complex issue for which the U.S. copyright code is not particularly helpful. As a result, VAGA tries to offer every possible advantage in lower or waived fees to scholarly publishers, and especially authors, who are required to clear rights with us.

Sincerely,

Robert Panzer

VAGA (Visual Artists and Galleries Association) 350 Fifth Avenue
Suite 2820
New York, NY 10118
tel: 212 736 6666
fax: 212 736 6767
rpanzer[_at_]vagarights.com
  -----Original Message-----
  From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org]On Behalf Of Robert Labossiere   Sent: Wednesday, July 27, 2005 5:55 PM   To: CNI-COPYRIGHT -- Copyright & Intellectual Property   Subject: [CNI-(C)] fees for fair use in books

  I am working for a small art book publisher. Our books are quite specialized; often they are anthologies of critical/theoretical essays. My understanding is that reproduction of art works within such essays is a
"fair use" in the US and "fair dealing" in Canada, i.e. exempted from the
need to secure permissions and/or pay fees. Yet, if we ask an institution for an image for reproduction, what we get back is an offer to license, for a fee. What is going on here?

  Robert Labossiere, MFA, Ll.B.
  Toronto