Re: Response to Sara Hindmarch

[Amalyah Keshet <akeshet@xxxxxxxxxx>]

I have been following this discussion with interest.  I would like to put in 
a word, not just for Fair Use, but for common sense.

Hypothetical:  I want to make a video of my home, in order to promote my 
talents as an amateur interior decorator.  I happen to collect local 
contemporary art.  I cannot "shoot" my home without the works of art on my 
walls appearing in the video.  They are there, like the furniture and the 
refrigerator.  Can't avoid them.  I'm not shooting them specifially, not 
"using" them in the video to illustrate anything -- they are simply part of 
my home. The idea that I might have to seek permission from the artists 
sounds crazy, doesn't it?  If I were to approach one and ask, they would 
probably think I'm out of my mind.  Likewise, it doesn't even occur to me 
that I have to seek the permission of the trademark holder for the brand of 
refrigerator I own.

Not hypothetical (speaking from experience):  Let's say I'm a museum.  Our 
mission as a respository of cultural heritage is to promote what we have to 
offer to the citizens of our city or country, in order to ensure that our 
society takes advantage of what we preserve and display.  If I cannot freely 
photograph our galleries because they contain artists' works, something here 
doesn't make sense. If I approach an artist and ask permission for such 
"incidental" reproduction of their works in our collection, they think we're 
weird.  What possible motivation would they have for denying "permission"? 
Of course they want the world to know that their work is on our walls. 
That's what it's here for.  Reproducing it on a greeting card or t-shirt is 
another matter, of course, but the fact that the work was hanging on the 
museum's wall the day the shot was taken?  The only complaint they'll have 
is that it's reproduced too small, or not often enough.

The idea that a cultural repository may not illustrate to its constituency 
"this is who we are, this is what we have" without the burden of copyright 
permissions is worrying.  We have a similar conumdrum when it comes to 
fulfilling what is now considered a sine qua non for a cultural repository - 
the provision of an on-line database of its collections.  The assumption 
that this is a basic service is not, needless to say, accompanied by the 
assumption that someone has to fund it.  The idea that a museum has to pay 
each artist a copyright permission fee in order to show a thumbnail image of 
his work in it's collections database (of 100,000 works), so that the world 
can know that the work exists and where -- is a bit over the top.  It's like 
my charging the government for "publicity rights" when they want to 
reproduce my face on a driver's license.

Well, that should be sufficient provocation for one morning.

Amalyah Keshet
Head of Image Resources & Copyright Management
The Israel Museum, Jerusalem
akeshet@xxxxxxxxxx

________________________________
> From: Harper, Georgia [mailto:GHARPER@xxxxxxxxxxxx]
> Sent: Fri 2/10/2006 2:27 PM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: Response to Sara Hindmarch
>
> Sara:
>
>
> There are cases on the issue of what constitutes incidental use (which
> is a fair use), and you can be pointed to them, but the real issue is
> going to be risk tolerance. See the discussion of this very type of
> circumstance in Lessig's Free Culture, Chapter 7, pp. 95 - 99 (available
> online under a Creative Commons license, for free --
> http://www.free-culture.cc/freeculture.pdf).
>
>
>
> Before you commit to getting permission for 2, or at most 5 seconds of a
> work of art on display in a public museum as a camera pans the gallery
> space, please read the recently completed Documentary Filmmakers' Best
> Practices in Fair Use at
> http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pdf
>
>
>
>
> The subject matter (documentary films) isn't precisely your subject
> matter, but the concepts are broadly applicable to creative uses of
> other's materials. The culture of narrowly defining fair use (including
> narrowly defining each of its 4 factors), of getting permission for
> every single use no matter how incidental, no matter how small, no
> matter how insignificant, in both nonprofit and commercial filmmaking,
> is not without its societal cost (above and beyond the cost to the
> person seeking permission). Please have a look and then think about it.
>
> Risk tolerance has a role to play in creative endeavors - even if they
> directly or indirectly raise revenues.
>
>
> Georgia Harper

> Georgia Harper
> Univ. of Tx. System
> Office of General Counsel
> gharper@xxxxxxxxxxxx
> 512/499-4462