IP SIG, et al.:
I thought the e-mail exchange, below, might be of interest to all who have
to deal with
issues of photography and filming in their museums' galleries.
Forwarded with the kind permission of Georgia Harper.
Amalyah Keshet
Chair, MCN IP SIG
----- Original Message -----
From: "Harper, Georgia" <ghar...@utsystem.edu>
To: "Amalyah Keshet" <akes...@imj.org.il>
Sent: Thursday, February 16, 2006 5:28 PM
Subject: RE: Response to Sara Hindmarch
Amalyah: ... It is very nice to know that responses can actually make a
difference.
I think that any of us who know enough about the law to know that it's
hard to predict how a dispute might play out, owe it to our institutions
to advocate courage. Shrinking away from taking risks costs, not just
the institution making that decision, but ultimately all of us, as the
culture of risk-aversion becomes almost like a contagion. Creative
people have to take risks. They simply must. Not fool-hardy risks, of
course, but reasonable ones. And the kinds of activities you describe
below in your message are more than reasonable. I hope your institution
listens to you.
Georgia
Georgia Harper
Univ. of Tx. System
Office of General Counsel
ghar...@utsystem.edu
512/499-4462
-----Original Message-----
From: Amalyah Keshet [mailto:akes...@imj.org.il]
Sent: Thursday, February 16, 2006 8:12 AM
To: Harper, Georgia
Subject: Fw: Response to Sara Hindmarch
Dear Ms. Harper:
Sometimes, when no one reacts to a message of this sort (below), I don't
know whether I've gone embarrassingly astray, or if my argument was just so
airtight
that no one can refute it.
Probably the former.
...
One of the things that concerns me most, in my line of work, is the
disconnect between how the real, end-user world works and how the legal
world works. It's two separate lines of logic. Both make sense, they
just can't live together.
I am obviously not a lawyer. I am the one who is supposed to keep my
institution away from lawyers, as it were. I am the one responsible for
risk management. I am the one who has to explain to my curators that
"No, there are no guidelines in the law -- only possible lines of defence
after the fact." And then watch their faces when they cry "Then what am I
supposed to DO?"
This is why I appreciated your message in this thread so much. Thanks.
Amalyah Keshet
Head of Image Resources & Copyright Management
The Israel Museum, Jerusalem
akes...@imj.org.il
----- Original Message -----
From: "Amalyah Keshet" <akes...@imj.org.il>
To: <digital-copyri...@lists.umuc.edu>
Sent: Tuesday, February 14, 2006 10:26 AM
Subject: Re: Response to Sara Hindmarch
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
akes...@imj.org.il
________________________________
From: Harper, Georgia [mailto:ghar...@utsystem.edu]
Sent: Fri 2/10/2006 2:27 PM
To: digital-copyri...@lists.umuc.edu
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
Univ. of Tx. System
Office of General Counsel
ghar...@utsystem.edu
512/499-4462
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