Re: Digitizing art slides?

On 04/21/99, Dick Perrin <perrinr[_at_]lib01.ferris.edu> wrote:
>
> We have a faculty member who wants to digitize the art slides that
> he has been showing in his class for several years. After they have
> been digitized, he want to mount the images on his WebCT site for his
> students to access in their studies.
>
> What procedures must he follow to comply with current copyright
> laws. He feels that this is a fair use of course.

First of all, are the works still under copyright? That's not an easy question to answer, but if they were "published" before 1923, they are almost certainly in the public domain in the U.S. ["Published" includes an unrestricted sale to a member of the general public.] If the works are not still under copyright, they can be freely copied. [See the recent discussion on the list of Bridgeman.]

If the works are still under copyright, the artist or other copyright holder owns the exclusive right of reproduction, subject to various defenses, including the fair use doctrine. Section 110(1) gives you the right to "perform or display" [NOT reproduce] a work in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction [with an exception not relevant here]. So if the slides are purchased from a licensee of the owner, your current activity is fine. If your faculty member is reproducing the works himself, you'll have to rely on fair use, which in the U.S. is a four-factor test with no clear answers. See 17 U.S.C. sec. 107. But if slides of the works are not otherwise commercially available, I imagine a court would be inclined to view your current activity favorably.

Assuming what you're doing now is a fair use, how does the digitization change things? It's another reproduction, for which you'll have to rely on fair use. And by placing them on the web, your public display no longer qualifies under sec. 110(1). If the site is limited to currently enrolled students (with password protection, for example), you at least have an argument that this should be treated as the equivalent of classroom teaching activities. But if the site is also available to the general public, I doubt a court would consider it to be a fair use.

As for getting permission, I am not aware if there is a centralized clearinghouse for reproduction of visual images, similar to ASCAP or BMI for music or CCC for photocopying of text. Anyone?

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Apr 22 1999 - 22:04:28 GMT