Digital Art History Review Copyright Question

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  • I'm starting a service for reviewing most of the Art studied in the first year of college. It would be digital.

    Most of the art is in the public domain, so I don't really have to worry about that. I just have a question about the art after 1923. I am going to charge a small fee, so it could be classified as commercial, but I still think that I qualify for the Fair Use Act, but I want to double check.

    Let me go through the rules, and hopefully you can give me your thoughts on the subject.

    ----the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. ---

    Commerical because I charge a small fee.

    ---the nature of the copyrighted work;---

    Review course for intro art history class.

    ---the amount and substantiality of the portion used in relation to the copyrighted work as a whole. ---

    It would only only be a small amount of artwork that would be copyrighted. Since 1923, there would be around 20-30 pieces that would be used out of 800 art pieces, so the fraction would be small.

    I could just omit those pieces(and have the student look them up), but for completion sake, it would be better to have them.

    ---the effect of the use upon the potential market for or value of the copyrighted work---

    This is a review "course" per-se. The students have already bought their art history textbooks, and most likely have a picture in their textbooks. It would be easier for the art piece to be right there (but I could of course just ask them to look it up).

    Most of my work is describing the art piece and the significance of it to help for Art History exams, etc. That is all my work. It is for educational use, but I am charging a fee, but I'd like to be legitimate about this.

    What is everyone's interpretation? I could just go to the museum and take my OWN pictures of these. Could I do that or does that still not work?
  • I think all of the fair use factors actually count against this use, harmless as it seems. Regarding the second factor, it is the nature of the original that is considered, not the nature of what you create. In this case, the originals are highly creative, indeed unique, works of art entitled to the strongest copyright protection. And the amount is compared against the individual work as a whole, not the whole body of work you are collecting. In this case, you want to reproduce 100% of each work -- photographs of entire paintings.

    Effect on the market, often considered most important, is the only factor that might be on your side. But if there is a secondary market for permissions available to you, that market, not merely the original market for the textbooks, might be considered and counted against you.

    You certainly could take your own pictures and use them, but only for works of art that are themselves in the public domain. And even in that case, the museums usually do not allow photography because they want to protect their role as exclusive source for reproductions of the art objects they own.
  • I agree with ksmith about paintings that are still under copyright. For those that aren't, you may have another issue to consider. You talk about going to the museum and taking your own picture of works, and ksmith rightly indicated that many, if not most, museums would not allow this. However, if you're using someone else's photos, then even if the original work is in the public domain, the photographer may have copyright protection for their photos.

    Many argue that a straightforward shot of flat artwork, where the photo itself is standard and lacks originality, would have very little copyright protection, or thin copyright. However, I'm not sure whether or not your case would pass muster for fair use even with thin copyright, and the issue becomes more complex with 3 dimensional art, where the photography likely requires more originality.

    So, what does this mean for you? If you have photos that you've taken of public domain art, you should be fine in regards to copyright. Similiarly, you're in good shape if you have public domain photos taken of public domain art. However, if either the photos or the original artwork are under copyright (or both), then I think your situation seems iffy at best.

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