Re: Original art work & its public display by owner on a web site

[clarkjc@xxxxxxx]

Colleagues,

Thanks especially to John Mitchell, Reb Thomas and Bill 
Westwood below, for the answers I received on and off list to 
this question. Let me clarify a couple things, and muse a bit 
further about this issue.

I can assure everyone that my query about whether it is 
necessary to obtain permission to web-present the paintings 
owned, was not with an eye to being cavalier about an 
obligation. In fact, the college library in question doesnbt 
plan to post images, of any quality, of its paintings if it 
doesnbt get consent of the artists involved.

But I did take the case, as it came up, as an occasion to 
puzzle over the copyright law in a form of expression I donbt 
have much experience with as it transpires in the artistic 
and commercial world.

Reb Thomas in particular suggested that the additional rights 
of the copyright holderb-here, crucially the public display 
and reproduction rightsb-are not normally granted as part of 
an art purchase or an art gift, to an institution such as a 
college. 

Thatbs helpful. But what puzzles me, devilbs advocate style, 
is the following. Keep in mind that the context is an 
original work of art, a watercolor or oil painting. Each 
artist involved certainly has/had a reputation, and perhaps 
business to conduct on the reputationbs basis (or perhaps if 
deceased the heirs do), and may or may not use the images of 
the original in that business, whether through further sale 
of copies or simply public display of their own.

But a couple questions (expressed at length):

1.	If rights for display and/or reproduction are not 
normally granted when a painting is donated, commissioned or 
sold to an institution b should the institution even have the 
leeway to mount it in a physical public place to begin with? 
Is it the more-expansive public display on the Internet that 
places such display in questionb-and/or perhaps the 
additional need to reproduce the work in order to make such 
an electronic display? All of which would require, Ibd 
assume, a still more solid bfair useb defense if one can be 
argued.

2.	Title 17, section 106A 
(http://www4.law.cornell.edu/uscode/17/106A.html) details 
rights for visual authors related to attribution and 
integrity. These are a separate domain of rights under 106, 
and are non-transferable in themselves (no matter who ends up 
owning copyright to a work as well as a copy/original of the 
workbs embodiment). OK.  This seems to me the only area of 
American intellectual property law that explicitly 
acknowledges an inherent moral dimension in creation that 
derives from a way of thinking about the subject thatbs more 
common in Europe. 
  I had overlooked/forgotten about this vital subsection 
earlier. But it leads me to wonder now: 106A *should* make a 
without-permission, fair use defense even more difficult to 
manage, shouldnbt it?  No matter what 106 rights were 
transferred along with the purchase. The posting of low-
resolution images of the purchased artwork on an educational 
web site might squeak by with a fair use justification, were 
repro and display rights not transferred. But... doing so in 
either case (rights or no rights transferred and just a FU 
defense) might also have to overcome the objection that such 
images are a bdistortionb of the original work under 106A(a)
(2) & (3)(A), if the artist were inclined to pursue it. At 
least, as I read and think about the subsection. 

Any further thoughts? 

Jeff  


---- Original message ----
>Date: Tue, 17 Feb 2004 15:33:12 -0500
>From: Bill Westwood <westwood@xxxxxxxxxxx>  
>Subject: Re: Original art work & its public display by owner 
on a web site  
>To: <clarkjc@xxxxxxx>, <digital-copyright@xxxxxxxxxxxxxx>
>
>
>I read with interest your question and Mr. Mitchell's 
reply.  Kelly v.
>ArribaVista and high or low resolution online reproduction 
notwithstanding,
>unless there has been a written transfer of copyright, the 
college in
>question owns only the physical artwork and not the rights 
(under copyright
>law) to reproduce it, without permission from the creators.
>
>The fair use provision provides protection for uses such as 
criticism,
>comment, news reporting, teaching, scholarship and research, 
viewed within
>the parameters of four additional factors.  Even if the 
proposed use by the
>college could be twisted around to somehow fit the true 
purpose of fair use,
>(or even the Kelly v. ArribaVista decision) in a way to 
achieve legal
>absolution, it still wouldn't make use without permission 
morally right.
>
>As a practicing professional artist/illustrator, with over 
30 years
>experience and an equally long and abiding interest in 
copyright issues, I
>don't understand why there would even be any question about 
simply
>contacting the artists and formally requesting written 
permission to
>reproduce their work in the manner described.  The 
reproduction rights
>belong to the artists, not the college. At the same time, 
most creators I
>know are happy to give permission for use of their work in a 
noncommercial
>way, especially if it provides the work and the artist with 
additional
>exposure.
>
>   
>William B. Westwood, M.S., CMI
>Medical Illustrator
>Westwood Medical Communications
>915 Broadway
>Albany, NY  12207
>
>(518) 432-5237
>
>
>
>
>
>
>on 2/16/04 5:20 PM, clarkjc@xxxxxxx at clarkjc@xxxxxxx wrote:
>
>> Colleagues,
>> 
>> Another library colleague is at a small, private college 
that
>> owns a handful of original paintings. Some are by deceased
>> artists, the others by living ones that either do or do not
>> still exhibit on their own. None are difficult to contact.
>> 
>> The college wants to display images of these paintings they
>> own, on a web site related to their special library
>> collections.
>> 
>> At this point, my colleague's inclination is to contact the
>> painters, explaining the situation and formally asking
>> permission to use their paintings in this way.
>> 
>> I'm not sure of the legal issue involved that makes this 
the
>> correct move--beyond courtesy--or suggests that the college
>> library could go ahead and act without permission if they
>> wanted to. 
>> 
>> Your advice would be welcome. I'm sure I'll learn something
>> (or be reminded of something I should know!) myself....
>> 
>> Jeff
>> 
>> ===========
>> Jeff Clark
>> Director
>> Media Resources MSC 1701
>> James Madison University
>> Harrisonburg VA 22807
>> clarkjc@xxxxxxx (email)
>> 540-568-6770 (phone)
>> 540-568-7037 (fax)
>> 
>> -----------------------------------------------------------
----------
>> 
>