By Jennifer Bartle

This article was published in Museum News March/April 2004.

Q: A contemporary art museum is about to put a portion of its collection on its Web site. It is a nonprofit institution; this is an educational project; it plans to use only thumbnail-size, low-resolution images; and there's no commercial use involved. So under the Fair Use doctrine, they should be perfectly safe in going ahead. Right?. . . . Well, maybe not.

A:As with many of the intellectual property issues museums face, there are few black-and-white answers for putting a museum's collection online. The sheer volume of message board postings alone shows this topic is on the minds of intellectual property managers, copyright officers, and others tasked with deciding which images can be posted on their Web site, and which cannot. 

Some people will tell you that as nonprofit institutions, museums are allowed to include copyrighted images without seeking permission. Others say that the size of the images matters: thumbnail images are allowed, but anything larger would require clearance. And there is the question of protecting the images: if we add a watermark, would that solve the copyright problem?

Museums are left to pick their way through the myriad rules that do not seem to have clear “yes” or “no” answers. At the heart of the debate over online images lies the biggest quandary of all: Isn't this fair use? With that argument still being developed, the museum community seems uncomfortable relying on fair use as a defense. 

In deciding how to put our own collection online, we at San Francisco Museum of Modern Art began examining the values, priorities, and policies of our institution. As a result, we found an approach to copyright clearance that was right for us.

As a modern and contemporary art museum with very few works in the public domain, copyright clearance is integrated into the majority of our processes. However, with a set of records chosen for the launch of our Collections Access Online, we began to question whether this project should require that same type of copyright permission.

Initially, we explored a more aggressive approach. Internally, there was a feeling that we should take a stand in the growing debate surrounding copyright permission for projects such as this. Some felt that most museums were waiting for someone to be the first to take the plunge, to test the boundaries of "fair use." Maybe we should lead the pack? We gained momentum as we examined, with the help of our legal counsel, the fair use factors involved. We were a nonprofit institution; this was an educational project; we planned to use only thumbnail-size low-resolution images; and we would not link this portion of the site to any commerce-driven pages. We felt relatively confident that, should we ever face legal action, we would have a strong fair use argument.

However, as the initial fervor wore off, we realized this aggressive approach was somehow at odds with our institutional character. At this point we chose to examine our museum's culture in order to develop the right strategy.

As part of this process, we looked back at our mission statement, met with our director, and generally took the pulse of those inside the museum. One idea rose to the top again and again: the importance of our relationship with artists. We found those relationships to be fundamental to our success, the very reason many of us chose to work in a modern art museum. We then asked ourselves about our priorities, both for this project, and for the museum in general. The answers again brought us back to artist relations. With this knowledge, we looked at our Intellectual Property policy for more guidance, and found a simple and straightforward answer: "SFMOMA is committed to protecting copyrights and other intellectual property rights of creative artists. . . ."

Through a thorough examination, we found the only way to move forward was to contact the artists for their permission and support of our project. Not because we felt legally bound to do so, but because it embraced our fundamental position of respect for artists. In practice, this approach meant writing letters to artists and estates, describing the project, and enlisting their support.

The response we received from artists thus far confirms this decision. Their support for the project has been overwhelming, with only one denial out of the hundreds of letters sent. And though it is time-consuming, this approach affords a certain peace of mind. Whereas the fair use route could cause anxiety over the potential of future legal action, this approach allows for a timely answer, in clear-cut “yes” or “no” terms. 

Through the process of contacting the artists, we have not only received permission for this project, but we have also gained insight into what the majority of the artists seem to care about most: fair representation of their work. We found their objections were less about protecting their commercial interests and more about protecting the integrity of their art. In this manner, we came to realize that although we were contacting artists ostensibly to receive copyright permission, we had also entered into a dialogue with them; the result of which may someday lead to stronger, more trusting relationships, where such permission would be inherent.

However successful this approach, there are still some questions for the future. Most important, by contacting each artist, are we merely exacerbating the already growing “permission culture?” As the duration of copyright protection is extended by lawmakers, are we setting ourselves up for a future of always seeking permission, even in cases involving little or no risk? We do still believe risk assessment is an important piece of the puzzle. However, in this case, we see our actions not as perpetuating this permission culture, but rather as working to create a culture in which artist-museum collaboration can achieve mutually beneficial goals.

In conclusion, for collections online, or any project in the sometimes confusing world of intellectual property, taking time to examine your museum’s culture and assessing the institutional priorities may be the best place to start. This approach can guide your process in ways the law alone cannot.  Look at your mission statement. What does it say? What are your priorities? What do your policies tell you? 

Combining legal understanding with your values, priorities, and policies should guide you to a decision that feels right for your project and for your institution.

Jennifer Bartle is intellectual property assistant, San Francisco Museum of Modern Art.