Museum and Art Book Publishers Wander in Copyright’s Wild West
If every picture tells a story, Mitch Tuchman has heard them all. As head of publications at the Los Angeles County Museum of Art (LACMA) for 13 years, Tuchman produced 68 volumes for copublication or trade distribution, wrangling permission to print thousands of images from artists and their heirs. Groping through the byzantine legalese of contracts for the likes of Toulouse-Lautrec and David Hockney, on the one hand, and noting certain of his colleagues’ cavalier duplication of transparencies on the other, Tuchman stumbled onto an unsettling truth: “The atmosphere of ignorance with regard to picture rights is pretty alarming at some major institutions.” In the jaunty 1980s, to take just one instance, a group representing artists’ rights wrote to Tuchman demanding fees for images used in a LACMA exhibition catalog. Uncertain of his obligations, Tuchman queried his trade copublisher. “Wait and see if they send another letter,” the reply came back. “We’re in the habit of ignoring these people, and they usually just go away.”
Today, Tuchman says, this advice would be viewed at best as quaint. “Everybody is more wary about claims of copyright,” he explains. Yet even though much has changed, perplexity over copyright law persists, resulting in Medusa-like indemnity clauses that sprout from copublishing contracts everywhere. These paragraphs are “a little battle or minuet where each side is trying to allocate the risk of publishing these images to the other side. Neither one is taking the responsibility of knowing about these issues.” Tuchman, now in the intellectual property practice group at Womble Carlyle Sandridge & Rice, has vowed to meet copyright law head-on. What’s at stake for both museums and publishers, say others familiar with licensing issues, is not merely legal peace of mind. As the costs of permissions can soar into the tens of thousands of dollars, and even seasoned publishers refer to licensing as “a morass,” the livelihood of big chunks of the art book business is on the table.
“The costs have gone up for everyone,” says Peter Warner, US President of illustrated publisher Thames & Hudson. “If you’re producing a large book with hundreds of images, keeping the overall budget at a rational level can be difficult. And there are times when, because of its cost, you do feel you are leaving out a picture you would have put in otherwise. You have to make those tough choices more often than not.” Others in the industry are worried about both their bottom lines and the larger consequences, too. “Some estates and artists are making it too difficult to publish their work,” says a book packager. “If Picasso and Matisse had been as restrictive as some artists and estates are today, they’d never be as famous or as influential.”
Indeed, the road to publish images is veritably paved with tollbooths. A celebrity photo may require separate clearances from both the photographer and the celebrity. Then you might get dinged for cropping an image, putting it up on a website, or putting it on a postcard. Museums, which must seek permission to publish images they do not control, even as they exploit licenses for work in their own collections, are acutely feeling copyright pains. “Even into the ’90s, museums felt that if they owned a work of art, they could do whatever they wanted to with the image of it,” says Garrett White, Director of Publications and New Media at the Whitney. “Now, everyone knows that’s not true. Ownership of the object and copyright are separate. And that has driven the price of books up very substantially. It means certain types of books are no longer possible to create.”
‘Strip Mining the Obituaries’
In another tale from the trenches, Tuchman once faced clearing rights to hundreds of works by scores of known and anonymous artists for the LACMA exhibition catalog Exiles and Emigrés: The Flight of European Artists from Hitler. Copyrights held by the estates of 14 of the artists were administered in the US by Artists Rights Society (ARS). For nonexclusive, worldwide, English-language publication rights, says Tuchman, ARS quoted a fee of $18,000. But when he protested that sum, “the price, which I suspected was arbitrary, dropped to $9,000 in a heartbeat.” Other contingencies crop up, as well. When LACMA sought to reproduce a work by the late Swiss artist Jean Crotti on the cover of an exhibition catalogue, a rights group claiming to represent Crotti came knocking. Yet Crotti’s sole heirs “claimed never to have heard of that society and certainly not to have engaged its services. Incidents like this lead publishers to accuse the clearinghouses of strip mining the obituaries.”
Theodore Feder, President of ARS, replies that while he was unfamiliar with the details of Tuchman’s transaction, the fee for worldwide use is typically double that for North American use, and a distinction between territorial rights could account for the $18,000 being halved. He also notes that ARS will negotiate a volume discount when large numbers of images are involved, and that fees are reduced drastically for truly academic publishing. “I can’t think of any case where we’ve demanded a fee which blocked the publication of an image,” he adds. “We prefer to make it workable for both us and the publishing house.” Other groups representing artists’ rights acknowledge that the business has its quirks. “This industry has some unique problems,” says Bob Panzer, Executive Director of the Visual Artists and Galleries Association. “Publishers are willing to pay for images. But when they’re forced to pay twice — when the source of the image charges them a fee equal to the fee they would normally pay for standard stock photography — it gets very expensive.”
And even with rights groups going to bat for them, some artists are still getting a raw deal, says Peter Howe, a longtime photo editor formerly with stock agency Corbis. Photographers in particular remain vulnerable under current law. “Unless you have registered a copyright on a picture, you do not have the ability to sue a violator of your copyright for anything other than actual damages,” Howe explains. “If your licensing fee is $75, and your photo is unregistered, that means you can only recoup that amount of money. There aren’t a lot of people who will pursue a lawsuit for $75.” Fortunately, he finds book publishers to be among the most scrupulous traffickers in images. “I am now producing a book for Workman, and we go through everything in detail,” he says. “We work out the licensing budget for the photography before we even start the project.”
The devil, of course, is in those very same details. “I’m amazed that books dealing with 20th-century artists get published at all,” says Susan Bielstein, Senior Editor at the University of Chicago Press, citing the travails of working with living artists. But even the so-called “good and dead” artists can prove meddlesome. Bielstein licensed a book with drawings from the 18th and early 19th century from a French publisher, which provided film for the images. Since the works were in the public domain under every applicable country’s copyright laws, Bielstein assumed they were good to go. “Not five minutes after the book was published,” she says, “we hear from a major museum in New York City which claims that one of the drawings is in its collection.” The museum demanded a fee, upon penalty of suspending business relations with the entire University of Chicago. Bielstein paid the fee.
Museums are themselves in a double bind. Technically, images of art in a museum catalog would qualify as educational fair use, says Mikki Carpenter, Director of Imaging Services at the Museum of Modern Art. “At the same time, we have to negotiate to use these images and pay considerable amounts of money because we want to maintain good relationships with artists.” Complicating matters further are digital databases of images such as the Art Museum Image Consortium (AMICO) or the Mellon’s ArtSTOR initiative, which is digitizing images of fine art for scholarly and research uses. ArtSTOR Executive Director James Shulman observes that anyone treading into the realm of digital reproductions needs to keep a wary eye on the teetering terrain. “It’s definitely a wild west territory, and the legal decisions haven’t clarified very much.”
Indeed, a federal court hearing the 1998 Bridgeman Art Library case found that transparencies of public domain art were not protected by copyright, directly contradicting museums’ claims of control over images of objects from their collections. But museums are standing their ground. “Museum publishers tend to apply an extralegal standard,” says Susan Chun, General Manager for Electronic Information Planning at the Metropolitan Museum of Art. “We assume that when reproductions are made of works of art, those reproductions are copyrighted works themselves.” As for the grumbling by trade publishers about museum reproduction charges, Chun says: “Believe me, museums are not getting rich off of this. Permissions costs may appear to be rising because when fewer art books sell, the per-unit permissions costs are higher.”
However you slice it, the spiraling costs of publishing art books have spurred a sort of grassroots demand for an alliance of museums and publishers that would swap information about licensing fees and draw its own lines in the sand. Though such an entity would surely spawn more reams of case law, there’s no hiding from the fact that licensing transactions in today’s trademarked world are only going to get more, well, unseemly. “You can license a building, and you can probably license your children to Coca-Cola,” says Garrett White. “It has more to do with the gradual commodification of everything.”