IPA: Can you tell us about your image work at MoMA?

CH: At MoMA we are both publishers who seek to obtain images for use in our publications and often get frustrated at how difficult or expensive that can be, while at the same time we are grantors of licenses to images and also copyright-holders or stewards for certain artists’ estates. Of course depending on one’s particular business, one’s views about image licenses and image rights get shaded one way or another. When I’m assembling images for a book, I understand the yearnings of those who say all museums should make all images of their works freely available in high-resolution, and when I’m thinking about how to pay for the huge infrastructure of photographing and maintaining a collection and the rights of the artists we represent, I also understand that there is still no such thing as a free lunch just because we’re in a digital age. Creating any quality content has to be paid for somehow.

IPA: What are your practical difficulties managing image rights?

CH: The first thing to say is that managing image rights can be a labyrinth. There is a very good reason why images were left out of the original proposed Google Book settlement, and why it took a long time after the Authors’ Guild and publishers’ lawsuits before the photographers filed suit. A novel, for example, may have only one copyright holder, but a visual arts book may have hundreds. There may be trademark law considerations, there may be building rights (Disneyland has building rights, so does the New York Stock Exchange), there are of course the photographer’s rights, there may be personality and privacy rights and there may be resale rights, droit de suite. And although others may simplify, for example Instagram may say it has the right to sell your pictures based on your tacit acceptance of their terms, but that may not stop you from getting sued if another rights-holder objects. And then, yes, finally, there is the right of the asset holder to ask for a licensing fee if you want to use the particular image that, say, a museum’s imaging department painstakingly shot. Now of course this all sounds like doom and gloom, but in fact I still think that visual arts publishing is a fine profession and I enjoy it. When you are publishing, you are constantly making judgments, not just about the law and how it may be interpreted, but business judgments. A lawsuit is expensive regardless of legal right or wrong. Conversely, stasis and paralysis are also expensive.

IPA: But if MoMA buys a piece of art, it should have all rights to it…

CH: I do want just to make the very basic point that ownership of the tangible object does not equate to ownership of the underlying copyright interests. This is very basic. It is an obvious facet of the whole concept of copyright, but I have to tell you I am constantly amazed by wealthy collectors who will think nothing of paying $10 million for a single work of art but just don’t realize—and might have a rude awakening when told—that buying it doesn’t convey the right to reproduce it. This was not such an issue when the biggest money involved an old master’s works already in the public domain, but today the biggest money is in contemporary art. Contemporary art can be a trading currency for some of today’s super rich. Well, if you own a work then you can show it where it is located, you can lend it to other venues, and of course you can sell it, or donate it. But you cannot make copies, prepare derivative works, distribute copies to the public or display or perform the work publicly. Only the copyright holder can do or authorize those things. So museums, absent rights assignments or licenses from the copyright holder, cannot just give you images of works in their collections.

Of course there are variations in national laws. We all know about moral rights being stronger in Europe and especially in France than in the US, and indeed the divergence between the Anglo-American concept, which has tended to see culture more as a commodity, from the French concept of the right of the author and natural human rights and protecting the creator, might be said to go all the way back to the beginnings of copyright law in each society.

The copyright variations are not exclusive to images, of course, so I won’t dwell on them, but the historical variations regarding failure to re-register copyright in the US, which put some quite late works into the public domain, and the other exceptions so that just being dead 70 years isn’t a straightforward guideline—these variations do complicate image research, but a more problematic thing in my experience is competing assertions. In Venezuela the government asserts ownership in works by artists whose heirs also assert ownership. I’ve just been through an absurd situation regarding a deceased artist from another country whose children and nephews assert completely different positions.

IPA: It sounds really complicated. Is there a manner of simplifying the work with images?

CH: My rule of thumb or rather my advice to visual arts publishers is: deal with the old masters if you can—they’re all in the public domain. Failing that, deal with a living artist because then you have a good chance of making the conversation about the art and its meaning and how best to publish it. But the worst scenario, the thing to avoid, is the recently deceased artist and his family. Well, how do museums that are in the image business deal with all of this? Not all that much by ‘Fair Use’ which is another thing that varies by country. And Fair Use is not simple, it is judged on a preponderance of relevant issues.

At MoMA, we use non-exclusive licenses—NELs—and blanket agreements. And that saves an enormous amount of work, because managing image rights isn’t just about fees, it’s about workload and the consumption of resources and staff time. A non-exclusive license is something we always seek when an artwork comes into the collection. Sometimes an artist’s estate will assign us the copyright and ask us to manage the estate, but usually it is an NEL, and this simply says we don’t want any exclusive commercial right, but we just want to be able to reproduce the work in our books, on our websites, in our publicity without coming back to you for permission for every use.

A blanket agreement with an artists’ rights agency says we will pay you, up front, a lump sum every year in order to be able to reproduce all the work of all the artists you represent, whether in print or in digital form. It isn’t inexpensive, but it more than pays for itself in freeing up staff from writing letters and seeking permissions and stipulating print runs for every image every time we publish it. Museums usually maintain huge databases with all the image and rights and proper caption information. Typically they will have a collections management system and a digital asset management ‘treasury,’ and a department for doing high-quality imaging, and a digital media department for processing web uses. But of course publishers doing the occasional illustrated book can’t expect to set up this entire infrastructure. The point I am making is that being organized about an image log is really a minimum necessary investment.

IPA: Can you give some other tips for people who want to publish pictures, or image books?

CH: There are three main sources of potential images for most people intending to publish pictures. We’ve talked about how institutions may charge asset fees. And yes, it’s true that image-licensing agencies can be troublesome and expensive as well as helpful. And the last category—not just artists, but also estates, and private collections—can, as I’ve said, present their own demands and problems. But in our experience, all those relationships are important, and those three sources rather than the Web are far more reliable despite the hoops and fees.

IPA: So what about images from the internet?

CH: The Web of course is the most ubiquitous and tempting source to use, and I suppose today most people’s research starts there because it’s so easy. But there are real digital pitfalls. Images on the Web without a copyright notice are of course not necessarily in the public domain. Remember that the Berne Convention does not require a copyright notice: the default is that the image is under copyright. Not charging for an image has nothing, or very little, to do with whether you can use it. Just because it’s posted means nothing. The owner has to explicitly grant use, and as I’ve said ‘Fair Use’ varies by country.

Copyright is almost never inadvertently lost these days. Nor is a derivative use automatically separate from the original copyright holder’s interest unless it is for criticism or parody. I say all this because small publishers have on several occasions been put out of business or severely damaged by lawsuits for copyright infringement using images from the Web. It’s generally civil law, so being innocent till proven guilty doesn’t apply. It’s not for the user to judge if it is ‘free advertising’ that the copyright holder may come to appreciate. And again, having a copy is not the same as having the copyright. There aren’t yet common documents granting licenses, rightsholders may have special stipulations about review and approval, or ask difficult questions about how many downloads you anticipate, or have concerns about what devices the images will be shown on, or about DRM safety. You may be forced to implement DRM even if you don’t want to, based on the rightsholders’ wishes. And it can be slow to persuade people to grant digital usage rights. Also, the possibilities in the digital realm of indirect liability, and the as yet unclear resolution of first sale and resale—these are other potential pitfalls.

IPA: So, what is the most important thing in your work to get right?

CH: Sometimes it’s worth it to cultivate the relationship even if it means paying for something you might have defended in a court of law. Good relationships can help avoid endless complex arguments about interpretation of the law or of one’s rights.

When I first got into art book publishing, I remember being assailed by the representative of a great surrealist French photographer’s widow, who said that the piece of paper we’d produced that a dealer had given us, to substantiate his claim that he had the right to assign us the copyright, was in no way a legal document that would stand up in court—and anyway they’d litigate it in France. The dealer had produced this document from the artist that just said something like, ‘Dear Mr Dealer, You have always been good to me in the United States, so by all means do something with my photographs.’ So I called the dealer to tell him he’d really put us in a difficult situation. And he said, ‘Oh, just send Mrs X a crate of Chivas Regal.’ And I did, and the lawsuit and the nasty representative just went away. So this is an ecosystem that depends on good human relationships as much as on anything else.

Christopher Hudson is the publisher of The Museum of Modern Art, New York. The Museum publishes scholarly texts, exhibition catalogues, and print and digital publications for the general public on modern and contemporary art. From 1986 to 2005, Mr. Hudson served as publisher for the Getty Museum and Trust, and developed several hundred titles in the fields of archaeology, antiquities, conservation, and the fine arts. He is currently chairman of the International Association of Museum Publishers, president of the International Federation of Scholarly Publishers, and a board member of the Motovun Group of international publishers.