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Image Rights, Art History and Society

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Image Rights, Art History and Society Image rights, art history and society Jean Siméon Chardin, Le Jeune élève dessinant [The young student drawing], c.1738, oil on panel, 21 x 17,1 cm, Kimbell Art Museum, Fort Worth. Source: Wikimedia/Google Art Project. A report on the systems regulating the circulation Licence: Public Domain. of images of works of art and their impact on scholarship, teaching and the visibility of French public collections Presented to the Fondation de France Martine Denoyelle Katie Durand Johanna Daniel Elli Doulkaridou-Ramantani Images/Usages Programme Institut national d’histoire de l’art October 2018 www.creativecommons.org/licenses/by/4.0/deed.fr English translation: Katie Durand Image rights, art history and society - Report 3 Contents Introduction...................................................................................................................................................5 Executive Summary �������������������������������������������������������������������������������������������������������������������������������������7 Part I ................................................................................................................................................................9 The legal framework regulating the circulation of images of works in French public collections �������9 1.1 Author’s rights, intellectual property and exceptions applied to images of works of art .........10 1.2 The Art reproduction market .........................................................................................................14 Part II .............................................................................................................................................................19 Images as the historical and methodological backbone of art history.................................................19 2.1 Visual practice in art history ...........................................................................................................20 2.2 New tools and working environments ..........................................................................................22 Part III ............................................................................................................................................................27 “Down the rabbit hole of images”: a professional community under restraint ����������������������������������27 3.1 An issue effecting all sectors ..........................................................................................................28 3.2 “Against the flow of history”: professionals speak out ��������������������������������������������������������������35 3.3 A counterproductive system? ........................................................................................................42 Part IV ...........................................................................................................................................................47 A changing landscape: the international growth of open content �����������������������������������������������������47 4.1 Governmental measures for open data in the cultural sector in France .....................................48 4.2 The growth of open content ..........................................................................................................51 4.3 Open content in France: initiatives and stirrings ��������������������������������������������������������������������������57 4.4 Images as ”game changers”. Benefits and advantages of open content for museums .............62 4.5 Images of art works protected by author’s rights: Fair Use for Visual Arts and other options .69 Part V ������������������������������������������������������������������������������������������������������������������������������������������������������������75 Appropriation and creative practice .......................................................................................................75 5.1 Artists vs copyright ..........................................................................................................................76 5.2 Copy, quote, recreate: artists and the public domain �����������������������������������������������������������������77 5.3 The socio-digital revolution and new ways of seeing ������������������������������������������������������������������82 Recommendations ...................................................................................................................................103 Annexes �����������������������������������������������������������������������������������������������������������������������������������������������������107 The Authors ...............................................................................................................................................108 Acknowledgements .................................................................................................................................109 Bibliography ..............................................................................................................................................112 Image rights, art history and society - Report 4 Image rights, art history and society - Report 5 Introduction This report concludes a study carried out between concluding the report, consultations were still September 2017 and September 2018 as part of the underway and the results of the second vote on Images-Usages research programme coordinated the European Copyright Directive (12 September by the INHA at the request and with the support 2018) were announced.2 This volatile context is of the Cultural committee of the Fondation de in large part due to the growth of the internet France. and the hold it now has over all aspects of social and professional life. The digital image is a new The project came about in response to an alarming academic and cultural tool that is transforming the situation. At present, the costs and conditions discipline of art history (Part II). New collaborative governing the reproduction of images are having a practices, open licences and open data policies are profound impact on the way we study and promote emerging and being used to leverage progress, our cultural heritage. This report takes a closer look just as cultural institutions are beginning to shape at the current state of affairs, offers some examples their online presence. of best practice and makes recommendations on how the situation might be improved. The climate appears to be one of tension between, on the one hand, new and innovative The topic is complex; not only must the question opportunities brought about by digital technology be considered from a technical, legal and financial across a growing number of domains, and on point of view, but also from an international the other hand, cultural, administrative, legal perspective. Art history, archaeology and cultural and commercial systems that are struggling to heritage are inherently cross-cultural and cannot embrace and adapt to change quickly enough to be penned in by national borders (Part IV). avoid conflict and growing pains. Transformation is underway, albeit slowly, and while this report The study considers the use of images in research, is not intended to be a manifesto, it captures the academic publishing, collection management and position of academics, teachers, students, digital dissemination activities, but also in relation to specialists, collection managers and publishers commercial activities such as publishing, journalism involved in this transformation, who are quoted and the creative industries. It also considers new verbatim in Part III.3 and emerging practices in image use born of the digital era (Part V). Two corpuses of images must be considered when looking at image use, both in France and elsewhere: The report focuses on how images are used in art works protected by copyright (or “droit d’auteur” history, and how this is framed by the French legal in French) and works that are in the public domain. system (Parts I-III).1 It then takes a closer look at With age, works protected by copyright fall into initiatives taken by institutions and individuals to the public domain. It is important to remember encourage the circulation of free images (Parts IV that this notion was created to ensure that artists and V). and their successors are justly paid for their work. The two bodies of images can by no means be It is important to note that the many interviews, considered through the same lens. The legitimate questionnaire responses, papers, articles and social call to open up access and use of public domain media posts studied as part of this project revealed images does not apply to works protected by that the difficulties long faced by art historians copyright, for which leverage can only be sought seeking to use images of works of art in their through copyright exceptions such as those work expose deeper-rooted issues facing cultural granted through Fair Use in the US. institutions today. Questions around public access to knowledge, fulfilment of core missions and public service obligations, the need to bridge skill gaps and support career development, to increase social impact and build new business models 1 The need for an initial overview of the legal context became apparent emerged throughout. during discussions with professionals who deplored the lack of clear guidance on this matter when sourcing images for their work. 2 Article 13 of the proposed directive, which addresses cultural
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