“Can I Use This?” How Museum and Library Image Policies Undermine Education

Is the discipline of art history (together with museums and libraries) squandering the digital revolution? We’re not the only ones with this concern. Just last week James Cuno wrote a short article, “How Art History is Failing the Internet” and WIlliam Noel tweeted, “Calling on all other great libraries; follow @britishlibrary‘s example. Free your images!”

What we lost

Although eight years have passed since Eastman Kodak announced that it would stop manufacturing slide projectors, we have built only a fragmented system for distributing high-quality digital images—one that is failing our students, our discipline and the public. More has changed than the technology we use to illustrate our lectures. Pre-digital, we sought and created slides from the best available sources. We retained excellent older reproductions, purchased high-quality sets, and made new images on copy-stands. In each case, the guiding principle was to expand the slide collection with the highest quality images. One might think digital technology would have made it easier to follow this principle; unfortunately, the opposite is true.

Ten years ago, to prepare for class, we went to the slide library, chatted with colleagues, and pulled slides. The slide library was a one-stop shop. Now, if we want the best images available, we spend hours cobbling together a presentation from a frustrating array of sources, each with its own restrictions. We often use our university’s own repository, ARTstor, Flickr, the Google Art Project, museum websites, the Web Gallery of Art, Wikimedia, and even more specialized sources.

A culture out of step

Even though we live in a culture where high-quality educational resources are being widely and freely distributed (think iTunesU, Khan Academy, edX), high-quality images remain expensive and using them for teaching is more complicated than ever. Even as access to educational materials becomes more open, and images become ever more ubiquitous, high-resolution images that reproduce works of art (with reliable metadata) remain highly restricted.

The eco-system today

No other discipline would accept the ridiculous fragmentation outlined below:

  • ARTstor: high-resolution images (and generally reliable metadata) are behind a paywall. If your institution subscribes, you can use these images online in high resolution. However, only lower resolution images are available for download. ARTstor also offers valuable tools for classroom presentation.
  • Google Art Project: high resolution images (and reliable metadata) are free, but cannot be downloaded. It’s worth remembering that many classrooms lack a broadband connection and therefore can’t access this resource.
  • Libraries: the New York Public Library Digital Gallery, The Library of Congress, and many other academic libraries have been best-practice leaders, and recently the British Library made their Catalogue of Illuminated Manuscripts available under a public domain mark.
  • Wikimedia / Wikipaintings (two distinct projects): high-resolution images are downloadable, but often lack the quality metadata provided by our museums, universities, and libraries.

Our responsibility

Now don’t get us wrong. We’re not blaming ARTstor and we’re not blaming Google (or any of the other efforts to provide public domain images to the public). In fact, they are all the unsung heroes of this unfolding story (see our post, Why the Google Art Project is Important). For its part, ARTstor provides an invaluable service, but let’s not forget that their images are closed to the billions of people around the world who are not enrolled at a subscribing institution. Think of the impact on K-12 instruction.

As faculty, we have a responsibility to make the best images available to our students. Museums also have an educational mandate; don’t they have a responsibility to the wider public not served by ARTstor? Remember, most of the images we need to teach art history are in the public domain. Barriers to these images are of our own making.

The museum’s quandary

Repositories are often dependent on images that their providers—primarily museums and libraries—insist need to be locked down (and this even includes work in the public domain). Why? William Noel cites one reason, “The policymakers…don’t like the idea that reproductions of these images can be available for free. It feels to them like you are denigrating your greatest asset.” If this is true, then museum policy betrays a fundamental misunderstanding of digital culture, where scarcity is no longer equated with value.

Museums also cite revenue loss as a reason to restrict digital images. For many years, rights and reproductions departments provided an important revenue source. Fair enough. High-quality transparencies were expensive to duplicate, and the time it took to process and ship them, required resources. That time is over. These departments have in many cases been farmed out to for-profit companies that take a cut even from graduate students and researchers who publish out of their own pockets. A more rational solution would ensure that commercial publishers pay by including a simple non-commercial clause, while opening access to public domain images for everyone else.

Of course high-quality digital images are expensive to create and catalogue. In a recent twitter exchange, Ryan Donahue rightly noted, “Not every museum can afford the tech resource to provide it for you, many struggle to meet demands of on-site” adding that “You have to take revenue OFF the table. It’s about Mission > Revenue” But of course museums regularly restrict the photographs they already have; and visitor photographs are limited to personal use, ignoring not-for-profit educational uses in the classroom and on the web.

It’s not really about copyright

A recent article by Kenneth D. Crews, “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching, noted that museums have additional reasons for controlling the distribution of images (museums make promises to donors and rightly seek to ensure appropriate handling of an image and an artist’s reputation). But his findings go on to pinpoint the key issue, that museums use a variety of strategies beyond copyright to restrict the circulation of images,

Museums create a legal conundrum when they claim legal rights to control images, where copyright protection is doubtful at best. The works in question—both the artwork and the reproduction—may be completely in the public domain. Nevertheless, museums often assert claims of copyright protection to the images. If they are not in fact claiming copyright protection, they are often asserting levels of control over those works through contract or license terms associated with the work. Some museums go further and assert levels of control simply through terms of use that purport to be binding on anyone accessing the images from a website or other source. The museum that supplies the image is the party that is solely defining the terms of use, and it can do so based only on its ability to control access to the work. Yet the terms asserted are typically couched as if they were binding provisions of law. The museum is the gatekeeper of access to the art and to the images; in its role as a gatekeeper, the museum is devising claims that may be overreaching.

Controlling access to the original artwork is an outgrowth of the museum‘s possession of property, not of copyright.*

Restrictions limit influence

These restrictions produce an ironic result. The more museums restrict their images, the more works of art appear on the web in poor-quality reproduction, without color controls and without proper metadata. Restrictive museum policies seek to retain authority, but in practice render the museum’s expertise largely irrelevant for those beyond its walls. It is time for museums to support, not undermine, the public domain and to allow reproductions of their collections to freely circulate. Only in this way can they take a leadership role in our increasingly fluid visual culture. Do museums willfully avert their gaze from the fact that their collections are already online, in a black market of sorts, without the benefit of their expertise?

A huge new audience

Since Smarthistory joined Khan Academy a year ago, we have learned that there is a tremendous global appetite for high-quality learning content and we believe this extends to high-quality images. By maintaining access restrictions, we are locking out a world that is hungry to learn. The long term result of our existing policies will be a discipline that will be smaller and less influential than it might otherwise be. Salman Khan recently said, “There’s a lot more demand [from] people who want to improve themselves than anyone would have guessed.”

As we noted above, a handful of museums have begun providing downloadable high-resolution images for personal and educational use. We applaud these efforts. Just last week the Rijksmuseum launched Rijks Studio where downloading and remixing images is not only supported, it is encouraged. This initiative reminds us of Peter Samis’s questions, “Are the artworks ours to give? Are they ours to withhold?”—questions that need to be considered by every art museum director. The new Rijks Studio makes it clear that the Rijksmuseum is there to give. They state, “All of the images in our collection are high resolution. So the printout of your favorite works will look great, as a poster, for example, or you can even download them and make something yourself!”

Doing harm

The study and appreciation of art’s history is being thwarted by outdated, artificial restrictions on documentary photographs of works of art in the public domain. By accepting these conditions, art historians and our professional organizations have diminished our discipline. That there hasn’t been a greater backlash by art historians is not surprising given the findings of another recent study that outlined the disconnect between the discipline and digital technology.** Art historians have accepted the legal overreach by museums, even while admitting the harm done to their own scholarship and that undertaken by their students. Scholars and students have no legal tools to do otherwise—teachers don’t normally have access to a general counsel. In essence, museums suppress scholarship and educational initiatives via a chilling effect. Museums assert layers of restrictions with impenetrable legal language (see for example, a reproduction of a painting by the 19th-century artist Gustave Caillebotte). As art historians want to maintain their strong ties to museums, they often simply forgo publishing an image. The irony is that other disciplines more freely use the 42,500 results that come from a simple Google image search for the Caillebotte cited above.

We believe that museums can best ensure that our shared cultural heritage is understood in a thoughtful and informed historical context by freeing their images. We hope that museums, libraries and academics can work together to find better solutions and we look forward to the conversation.

*Crews, Kenneth D., Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching (July 1, 2012). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, p. 795, 2012. Available at SSRN: http://ssrn.com/abstract=2120210. Crews is Director, Copyright Advisory Office, Columbia University Libraries/Information Services. The article is an outgrowth of a research study of museum policies and practices funded by The Samuel H. Kress Foundation.

** Transitioning to a Digital World. Art History, Its Research Centers and Digital Scholarship. A Report to The Samuel H. Kress Foundation and the Roy Rosenzweig Center for History and New Media, George Mason University by Diane M. Zorich (May 2012).

Kress Foundation sponsored research can be found here

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