In my capacity as someone who works with rights and reproductions, I have interacted a few times with rights management organizations, whose main purpose is to manage copyrights on behalf of artists or their estates. The two titans of rights management in the US are ARS and VAGA.
Well, no where on ARS’ website do they bother to give a full disclosure about the nature of copyright law. The sum total of its Fair Use discussion is: ____ . That’s right: nada! This is part of why educational institutions like museums and libraries are increasingly scared of using reproductions for any of its purposes without gaining licenses from the rights-holders. Hence, the reason why the Artist Rights and Reproductions Database exists. I am not so against gaining licenses as I am rights management organizations for charging fees on these very same institutions, whose uses are usually going to be covered by Fair Use — although by no means all (for instance, commercial uses like taking a painting, printing it on umbrellas, postcards, mugs and selling them).
Additionally, both the rights management titans maintain a policy of only granting one-time use licenses as opposed to the general non-exclusive copyright license that covers limited non-commercial uses until the license is revoked, and it may be revoked at any time. Most artists, even if they are famous, are only too happy to grant these licenses. But if artists are represented by the two organizations, I don’t even bother sending a request.
Recently, I sent a non-exclusive copyright proposal to an artist’s heir in the hopes that he would respond favorably to it. Instead, he referred me to VAGA, which manages his father’s estate. A few days later, he followed up with me to see if VAGA had been of any help. I responded:
Greetings! Thank you for your help in referring us to VAGA. I have not contacted VAGA because VAGA has a policy that it does not grant non-exclusive copyright licenses, even for not-for-profit educational institutions seeking them for non-commercial purposes.
Rather, they grant one-time use licenses based on the intended use and often charge a fee, again, regardless of whether or not it is a not-for-profit educational institution or use (such as ours). In any case, I appreciate your assistance and wish you the best.
I received this response:
So you wanted to publish something without VAGA license? Just to clarify.
Clearly, there was a language barrier. I responded:
We do not want to publish anything — yet. We seek non-exclusive copyright licenses because we may want to publish things in the future, but ONLY in non-commercial contexts, such as educational brochures, or CDs for teachers. We choose to do this in order to insulate ourselves from copyrightinfringement down the line.
VAGA makes it VERY difficult for educational institutions and museums to do this without paying onerous fees.
His response was swift:
They protect the artist Christian. Their fees aren’t really so very high. But I appreciate your explanation.
I appreciated the friendly response. I didn’t respond because, after all, the customer is always right and there is no sense in potentially antagonizing the heir, although I would be fascinated to have a discussion with him about the rights process. Alas, I tend to offend when provoked. It is true that the fees aren’t “so very high” as he claims, but it depends on your frame of reference. If you are a private gallery with substantial financial resources located in NYC, then you may be required by copyright law to pursue such licenses, but if you are a not-for-profit museum attached to a public university whose financial means are not necessarily substantial, then you don’t have the ability to gain licenses to everything you want or need and really don’t have to most of the time, as so many uses are protected by Fair Use, in ways I enumerate in this post.
To be fair, I can see where they would protect artists in some cases, but this small, perhaps insubstantial part of their business they need to change. I realize that this would lead to less employment for my kind, but that is a price we all should be willing to pay. Besides, maybe lawyers can use their not inconsiderable intellectual talents in other fields where they are more desperately needed.