Digital Images and Fair Use Web Sites

Maryly Snow
Librarian
Architecture Slide Library
University of California, Berkeley

I'm going to discuss digital images on the World Wide Web using three fair use web sites as examples: SPIRO, the visual public access catalog of the Architecture Slide Library at the University of California, Berkeley; the Vincent Van Gogh Information Gallery; and the Art Imagebase from the Fine Arts Museums of San Francisco. This presentation is structured into three segments: introduction to the notion of fair use web sites; presentation of the three fair use web sites; problems and idealized solutions for the use of digital images in fair use web sites.

In 1994, Justice Sandra Day O'Connor, writing for the Supreme Court in Feist v. Rural Telephone, reaffirmed the Constitutional basis for the 1976 Copyright Law:

"The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art....[Copyright law] ultimately serves the purpose of enriching the general public through access to creative works." (1)

It is important to remember the objective of copyright while sorting through the competing and contradictory claims on both sides of the fair use/non-fair use debate.

A fair use information web site provides an educational and informational service. It uses, in whole or in part, other people's copyrighted material without their expressed permission. It is available on the World Wide Web without password protection, and it meets the four fair use criteria. SPIRO is an example of a fair use web site. It contains over 22,000 images and is growing at the rate of over 100 images per week. SPIRO consists primarily of images photographed from books and periodicals. There has been no attempt to obtain permission from the publishers of those books and periodicals for a variety of reasons. Instead, SPIRO invokes the defense of fair use.

SPIRO also contains images acquired from donors and purchased from slide vendors. We have negotiated, obtained, and paid for permission to display digital copies of vendor slides in two resolutions on the UC Berkeley electronic domain and in one resolution, that of thumbnails, off the domain. Although we could argue fair use of digital vendor slides, we do not.

The difficulty of asking permission and obtaining permission enters into one's decision to claim fair use. The layers of rights in an image are impossibly convoluted and layered. Creators or their estates, owning institutions such as museums and archives, photographers who document the creations of others, writers who describe and analyze the creations of others, and the publishers of those writers and photographers all can be the copyright owner. Even with picture credits in the back of the book, there is no way to know whom to approach for permission. For a full discussion of the layers of rights in an image, see Christine Sundt's paper, "CONFU Digital Image and Multimedia Guidelines: The Consequences for Libraries and Educators", presented at the Indianapolis ACLS/CAA Town Hall Meeting, April 1996.

Even if one knew whom to approach, obtaining permission is incredibly difficult. The rights holders, especially museums, have complex agreements and multiple demands, ranging from approved levels of resolution, color fidelity, requirements prescribing their preferred spelling of creator name and object title, limits on permitted uses and users, not to mention extraordinary fees. See the article "Just Do It" for some tales of exorbitant permission fees and resulting censorship (2).

The size of a digital image has bearing on its fair use. SPIRO only displays thumbnail images on the World Wide Web. Thumbnails are limited to 125 x 125 pixels. At this size they can serve three similar purposes: reference images to actual slides; visual surrogates of objects; or visual citations to the contents of books and periodicals. Thumbnails can be downloaded, but are so small that there is nothing to steal or misappropriate. Even CONFU recognized that thumbnail images have no commercial value. The next image size larger than a thumbnail is the vignette at 250 x 250 pixels, the cornerstone of the new JTIP (Jpeg Tiled Image Pyramid, the European counterpart of Kodak's FlashPix, both of which follow SPIFF, Still Picture Interchange File Format). The French Union des Photographes Createurs (UPC) agreed to display vignette-sized images for a no-fee license. These are not documentary or reproduction or museum photographs but creative photographers (3). Vignette-sized images are easier to decipher than thumbnails, but are not as acceptable to vendors at this point in time.

Fair use web sites acknowledge the sources of their fair use materials. In an exchange economy, these acknowledgments constitute economic value (4). Fair use web sites can help promote access to, or sale of, books and periodicals, or add to museum entrance gate fees. In all cases, inclusion of fair use digital images in the web must not undercut the value of the underlying copyrighted material.

Fair use web sites are not password-protected, as information knows no institutional or geographic boundaries, and should exist from sea to sea, and border to border, if not beyond. Teaching, research, and scholarship all depend on the accretion of information, and the accumulation of knowledge. Education flourishes best in rich environments with rich content. The reliance on password-protected web sites for low resolution image databases strikes me as an overly cautious, isolationist approach to information that is deleterious to education's needs in general and education's use of the World Wide Web in particular. Password-protection is the equivalent of don't ask-don't tell.

The value-added nature of fair use web sites probably will not enable them to be copyrighted in and of themselves, but should ensure their protection under fair use, and may encourage their proliferation. The value-added nature of fair use web sites comes from two basic activities: the collocation or bringing together of otherwise scattered material. It is the collocating nature of fair use web sites, and slide collections themselves, that makes them such rich informational resources. Another value-added feature of fair use web sites is their array of supplementary information. This can range from authority work on names and titles, the linking together of variant spellings and alternate titles, or indexing visual content to enhance retrieval.

Presentation of Three Fair Use Web Sites:

Visit these web sites, looking at image size and resolution, copyright notices, value-added information attached to the images.

1. SPIRO

2. Art Imagebase of the Fine Arts Museums of San Francisco

3. Vincent Van Gogh Information Gallery

When we talk about display on the web, it is important to consider that display of information may not be ipso facto synonymous with publication. These are two very closely related activities, but perhaps we can learn to distinguish display, connoting reference information delivery, and publication, connoting dissemination of content. Unlike display, publication, in my mind, connotes sale and ownership, and in the Web environment might refer to items that need to be downloaded for reading, analysis, or further use.

It has been said that site licensing trumps fair use, or site licensing supersedes fair use. I would argue the opposite, that fair use trumps licensing. After all, fair use has federal, statutory standing.

Fair use can atrophy if not boldly used. Congress decided in 1976 to not adopt the recommended Classroom Guidelines, opting instead to establish the four fair use factors. Congress, in its occasional wisdom, realized that there should not be prescriptive or normative guidelines for non-profit educational uses, that education and these uses would be better served without "bright line" rules to follow, even if that meant that all judgments would have to be adjudicated by the courts on a case-by-case basis. Last year the Courts reaffirmed the rationale behind the non-adoption of the Classroom Guidelines in Princeton University Press v. Michigan Document Service (5). Susan Kornfield, attorney for MDS, argued successfully that educators are supposed to educate, are supposed to assert their fair use statutory rights, and are not supposed to worry that the copyright police will break down their doors in the middle of the night.(6)

Even the Chicago Manual of Style, not exactly a "bomb-thrower's manifesto" (7) says:

"The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly. Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's cause." (8)

I have posited the existence of fair use web sites, asserting their appropriateness and usefulness in education. I have advocated an aggressive or bold approach to fair use. However, the day to day reality of working in education under the umbrella of fair use is one of uncertainty and nervousness. All conscientious digital fair users are uncertain and beleaguered fair users.

When I reaffirm in my own mind the constitutional basis of the copyright law, and the lofty aims of education, then I do not feel beleaguered. I believe that my approach to copy stand photography and providing remote access to a visual picture index falls well within fair use.

Whenever technology changes, making me rethink issues of image resolution, my slide vendors' markets, the assertion of museums' rights and reproduction claims against the needs of education, then I feel confused and beleaguered.

When I am in the midst of thorny site licensing negotiations with a vendor, a process that can take months, raise tempers, require countless phone calls on and off campus, yes, I feel beleaguered.

I feel frustrated and beleaguered because SPIRO is limited to very small images. The thumbnails frustrate on-campus and off-campus users. Some thumbnails cannot be deciphered or read clearly, limiting their intended reference use. Thumbnails do nothing to promote shared cataloging in the visual resources community, or shared image acquisition in education. Indeed, we are all still scanning the Mona Lisa.

When a prestigious library across the sea sent me email demanding $150.00 for SPIRO's use of a thumbnail of a Palladian drawing, which is, after all, in the public domain, and the thumbnail was taken from a slide, which was made from a second or third generation photographic reproduction, yes I feel beleaguered. And angry. Angry that a documentary photograph of an item in public domain is considered worthy of copyright protection, thus extending copyright indefinitely (9). Angry that some libraries, museums, and archives, charged with preservation of, access to, and education about our shared cultural heritage, are trying to control and profit from the use of images of those objects. Angry that non-profit cultural organizations engage in the capital-seeking behavior of the marketplace, and not in the exchange economy of shared information. Of course, I restricted that image. If many museums and archives took such an approach, and if many slide librarians responded in the way I did, then education could not remain the rich informative experience that we want and expect it to be. Without active reliance on fair use in education and on the Web, the Web will become only a glorified home shopping channel. And with each request like this, the likelihood that university legal counsel will say, "We're afraid of a lawsuit, so take down your web site", yes, I feel beleaguered for the future of education.

I am beleaguered because the Information Age doesn't look anything like the age I thought it would, could, or should. As an information professional trained to organize, store, retrieve, disseminate, and evaluate the quality of information, I am chagrined at how little we value information as a freely transacted commodity.

I might not feel so beleaguered:

• if the information age were about the dissemination of information, and not its commodification;
• if the distinction between reference images and reproduction images were recognized. Reference images would be freely transacted for scholarship, teaching, criticism, research, news, transacted without rights and permissions. Reference images would require attribution and source documentation. Reproduction images, on the other hand, would be those high resolution, large scale images that meet all the requirements of fidelity, attribution, and permissions required by the copyright owner.
• if we recognized the difference between display and publication on the World Wide Web;
• if faculty and students would cite their use of images with the same attention to detail as they should cite their use of words in quotations;
• if normative and prescriptive guidelines like the Classroom Guidelines and CONFU will go away in favor of principles of use and right practice, resulting in a strengthening of fair use on the Web;
• if there were bumper stickers that said " fair use trumps site licensing".

Strike a blow against the commodification of information, the commercialization of the World Wide Web, the marginalization of education, the mystification of fair use: assert your statutory right and create responsible fair use web sites. I wouldn't go as far as Abby Hoffman's Steal This Book, but I do say, "Use That Image."

I look forward to receiving comments on the concept of fair use web sites, additional issues to be considered in the designation of a fair use web site, including more examples of fair use web sites (fuws?), as well as my attempts to define types of use on the web, such as the possible distinction between display versus publication.

Footnotes:

1. Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340,349 (1991)

2. David W. Stowe, "Just do It: How to Beat the Copyright Racket" in Lingua Franca, Nov/Dec, 1995, pp. 32-42. This is a more responsible article than the title suggests, citing examples of scholars paying exorbitant permission fees, and censorship through fee structures, all or some of which could have been avoided if fair use had been exercised. High Lonesome: The American Culture of Country Music (North Carolina, 1994) cost the author $27,000 in permissions.

3. Information on Union des Photographes Createurs was discussed with the author by Jean Barda of NetImage of France at a meeting in May 1997, Berkeley, California. For further information on SPIFF and FlashFix format.

4. For further information of exchange economies, see Lewis Hyde' book, The Gift: Imagination and the Erotic Life of Property. New York: Random House, 1983.

5. Princeton University Press v. Michigan Document Services. No. 94-1788, ____F.3d____(6th Circ. Feb. 12, 1996) incomplete citation from an unpublished draft, possibly the 6th revision, of the National Information Infrastructure CONFU Digital Images guidelines.

6. Stowe, David W., "Just Do It", in Lingua Franca, Nov./Dec. 1995. p. 37. I don't interpret this quote from Susan Kornfield to mean that educators need not be conscientious and cognizant in all their uses of copyrighted material. Indeed, faculty and students should be apprised of copyright law and its various interpretations and applications. The point is that education should not be hindered by fear.

7. Ibid. p. 42.

8. Chicago Manual of Style: The Essential Guide for Writers, Editors, and Publishers, 14th editions. Chicago: University of Chicago Press, 1993. Chapter on Rights and Permissions, Section 4.58, p. 148. This quote is unchanged from the 13th edition of 1982.

9. See papers by Stephen Weil and Peter Walsh in Copyright and Fair Use: The Great Image Debate, edited by Robert A.Baron. (Netherlands: Gordon & Breach, 1997). Also published as Vol. XII, No. 3-4, 1997 of Visual Resources, An International Journal of Documentation.

Maryly Snow
Librarian
Architecture Slide Library
University of California, Berkeley