Digital Image Licensing – The debate rages on…

Whenever the topic of digital image licensing comes up, I listen closely. While my eyes tend to glaze over when somebody tries to explain the legalese of it all to me (I’m sure it’s my fault), I find this discussion fascinating when individuals relate access to high quality images to the mission of their institution, to the way they’d like to serve the public, and to the sustainability of the business enterprise their institution represents. A recent exchange on MCN-L lets your put your finger on the pulse of this spirited discussion in the museum community.

While some of the arguments aren’t entirely new, a good bit of very creative thinking surfaced as well: Alan Newman (NGA), for example, proposed a self-service site for licensing images on a sliding scale – if the Met fares well by allowing you to set your own entry fee into the museum, so he argues, why don’t we let those who’d like to use our digital images chose how much they can afford to pay for them? At that point in the discussion, I chimed in to cheer Alan on, and to suggest that such a licensing site would be all the more powerful if it weren’t custom-built and re-built by every museum in the country, but a cloud service available to all for a reasonable fee.

While the fear that bad things may happen if high resolution images are made available online is still present in the debate, what I heard overall leads me to believe that the gradual shift towards more open access is continuing – but maybe I’m just hearing what I’d like to hear.

I’ve pulled out some of the statements people made on the list, and compiled them for this blog-post under the “more” link. I hope this discussion continues, and I hope others will find their way to MCN-L and join in! The complete context for all the quotes I’ve pulled can be found in the list archives here. To my mind, this discussion is a bellwether for how museums see themselves, and where they’d like to go. Enjoy!

We seem to think that there is some money to be made off the images and if anyone is going to make it, it should be us. – Will Real, Carnegie

In past years (note that our materials, up until very recently,have never been available online), we have generated around $4000-6000/year in reproduction fees, most of that from one famous painting we have in our collection. In late 2008, we began publishing our materials on Flickr, in relatively high image sizes. We also started releasing information about our collections in ways that were easily findable by researchers. In March of this year, my boss commented that we had already generated somewhere in the order of $10,000 in fees -just in the first three months of 2009! – Perian Sully, Magnes Museum

I agree with others here that the museum stranglehold on clinging to the desperate dreams of deep licensing revenue doesn’t bear out in cost-analysis for *most* museums. […]I’d rather spend time on creating stuff to help users rather than restrict them. – Bruce Wyman, Denver Art Museum

We (the museum community) have hardly ever (never?) seen a significant, commercial, inappropriate, reuse of museum object images. It just isn’t done–there is no business model in stealing images. […] I am utterly, totally sympathetic to the political problems we all face. I just think it’s time to get over this image-size thing and start letting people enjoy our images instead of squinting at them or blowing them up until they’re fuzzy. – Matt Morgan, Metropolitan Museum of Art

Here at Princeton we enjoy the cover of an Office of General Counsel. We have had more than a few meetings dealing with what we can and cannot put online. The question is not IF you’re going to get burned, but WHEN. One of our attorneys has been neck deep in cases just such as this, and the results are very specific as to what is usable pixel-size-wise. Its a scary litigious world out there and if you’re dealing with living artists or other intellectual property that will generate some revenue; make sure you’re OK before posting something. – Jeff Evans, Princeton University Art Museum

I suspect that it will take less effort and fewer resources to deal with the small number of thefts that will arise than all the wringing of hands and hiring of lawyers for pre-emptive action that we currently engage in. – Nancy Proctor, Smithsonian American Art Museum

Regardless the size of the imagined revenue loss, the notion of ‘theft’ may not be entirely appropriate here, speaking only of payment for IP licensing not payment for services or product. Remember that the institutions mentioned so far operate as public charities – receiving a tax benefit but also encumbered with certain public-benefit responsibilities as a result. And leaving aside works still under copyright, for which we all have well known obligations, as well as works that maintain vital roles in the communities in which they were created, these collections consist of natural specimens or creative works now in the public domain. Who in this scenario would be thieving from whom? For these works, the assertion of copyright in visual surrogates and metadata is not a legal decision (so don’t start with lawyers) but a business decision that has on more than one occasion been described purely as an effort to maintain monopoly control. Is it possible to square this with public charities managing public domain collections? – Ken Hamma, Independent consultant

The best we can do, I think, is to make sure that recipients of our images know exactly what their usage rights are. But we should not be surprised when some people ignore our directives. The PLUS coalition has a great product that helps track and enforce image rights, and they are developing a profile that is specific to museums. – Stanley Smith, J. Paul Getty Museum

This reminds me of a classic example in the music industry in the early 90’s. Blue Note Record’s legal team came across a 12″ single called “The Band Played the Boogie” featuring an illegal sampling of Grant Green’s “Sookie Sookie”, enjoying a huge underground following. Rather than pursue a suit, Blue Note hired the group and gave them access to their full back catalogue. The resulting release was Blue Note’s first platinum-selling album (Us3 – Hand on the Torch). So, put your images out there, wait for someone to figure out how to make money from them, then hire them. – Nik Honeysett, J. Paul Getty Museum

It takes time to fulfill orders and to scan and catalog our items so basically the charges cover the staff person who handles all the requests. We bring in $1000-2000 per month selling our images to small publishers, the Martha Stewart show, LL Bean, and other outfits. We need the extra income to keep that service alive, otherwise we couldn’t offer it. – Kathy Bolduc Amoroso, Maine Historical Society

So we adopt a museum convention in use at the Met and elsewhere for admissions: pay what you can afford for images. What could be more fair? What could draw more attention to our collections? Who knows, this might be the answer to Mariet Westermann’s recommendation to streamline image licensing. When we build self-serve sites for image licensing which have trivial costs after the build, and especially if we are using the people’s money, it is hard to justify charging for extant images of public domain art. As Mark Jones, director of the V&A remarked, paraphrased as told to me, “the people paid for this once, why should they pay again?” – Alan Newman, National Gallery of Art

One thing I’ve learned in exploring the possibilities for setting up an online, download-it-yourself site is that the cost of maintenance, bandwidth, and 24/7 support is not trivial, and there is indeed human service involved. The thing doesn’t literally run itself. And the cost of the build is far from trivial – anywhere from $50,000 to $150,00. I have to pay for that with something — no one’s handing us the money to do it. That something is going to have to be a revenue stream. “Mission-driven public policy” may make us look in the direction of an online, download-it-yourself site, but it isn’t going to pay to make it happen. – Amalyah Keshet, Israel Museum

The Detroit Institute of Arts possesses rights to a large corpus of images of very high and covetable quality, both from its permanent collection and through exhibition projects. Like many organizations, we saw in the creation of Corbis and the like an ability to create a revenue center by careful management of “rights and reproductions,” making this part of a business model now more than 20 years old. Over that time period, as Eve Sinaiko, the Director of Publications for the College Arts Association, points out, the cost of art book publishing has skyrocketed, and the business of art book publishing continues to spiral downward. As a result, our revenue from rights and reproductions has diminished steadily to its current trickle–to the extent that we have just eliminated the full-time position required to manage that business. As policy, and we have been following this discussion with interest, we are transitioning to some version of almost free-circulation of images in the public domain, while still committed to protecting artists’rights, informed by the notion that the “rights and reproductions” business model conflicts with more expansive program initiatives involving on-line access and social media. At our scale, which is big for museums, the business of making revenue from images does not work very well. – David W. Penney, Detroit Institute of Arts