Scholarly publications in art history are fundamentally dependent on high-quality images for effective documentation and argument. Copyright law, permission procedures and fees, and the labor-intensive processes of color separation and high-quality printing have long formed obstacles to cost-effective and timely publication. As of yet, these challenges have not been mitigated by the advent of digital image (re)production. Initial prospects of easier, cheaper, and global circulation of images, expectations of fee reductions and widening fair use practices, and hopes of de facto deregulation of copyright restrictions have faded. It is a paradox of the digital revolution that it has never been easier to produce and circulate a reproductive image, and never harder to publish one.^[19]

Scholars and editors consistently identified mounting costs of permissions to reproduce images and escalating costs of printing them as constraining factors in the publishing of scholarly books with the kinds of illustrations required for clear communication in art history. Authors, publishers, librarians, and owners of copyrighted works of art and reproductive images also registered considerable confusion about copyright law and fair use. Some publishers, copyright owners, distributors, and users of images have begun to devise solutions posed by the current image economy.^[20] Below, the issues are separated into sections on copyright ownership, fair use, permissions and fees, image quality and access, costs to publishers, responses to the challenges posed by art history’s need for good illustrations, and print-on-demand.

It has always been possible to copy a work of art. For millennia, the right to produce and use images of the works of others for religious, political, commercial, or decorative purposes was rarely challenged. The advent of copyright restrictions on images coincides with the invention of the technologies that made faster, more economical reproduction of them possible—the printing press and efficient papermaking—and with the early capitalist transformation of European cities that spurred those technologies. As soon as multiple printmaking techniques were cost-effective, artists began to challenge unauthorized print copies of their inventions on commercial grounds, and thus generate case law that would lead to the codification of copyright in works of art and images. Causes célèbres in the history of the copyrighted work of art include Albrecht Dürer's partly successful challenge to Marcantonio Raimondi's bootlegging of his prints, Claude Lorrain's effort to protect his compositions against forgery by recording them in drawings in a Liber Veritatis, Peter Paul Rubens's elaborate privilege applications, and William Hogarth's lobbying for the first English Copyright Act, passed by Parliament in 1735.^[21] The current difficulties faced by scholars and their publishers in obtaining—and paying for—copyright permissions stand in this tradition of artists' assertions over the potential commercial value of their creative endeavors.

The following discussion of the current state of copyright practice is limited to copyright in works of visual art and architecture and in images that reproduce them.^[22] In the United States, copyright law protects makers of artistic works against the unauthorized copying, that is, reproduction, of their works. It is a form of intellectual property law in that copyright protects the expression of an idea (visual or otherwise) rather than the idea per se, and in that it is meant to safeguard the actual and potential commercial value of an artistic work for its creator, for a legally specified period. Ever since the adoption of the 1976 U.S. Copyright Act, which took effect in 1978, the law has tended to strengthen copyright protection for the makers of works of art and images and for their heirs, at the increasing expense of the right of freedom of expression, which would seem to authorize critical and expressive re-use and interpretation of creative works. Under the 1976 Copyright Act, copyright extends from the moment of the work's creation through the author's lifetime plus fifty years. In 1998, the Sonny Bono Copyright Term Extension Act increased that term by twenty years.^[23] The Digital Millennium Copyright Act, also passed in 1998, offers further protections of copyright holders in the digital realm.^[24]

The 1976 and 1998 copyright acts yield a few rules of thumb: any work of art made after 1978 is in copyright for the life of the author plus seventy years; any work of art that was made before 1978 and never published is copyrighted for the life of the author plus seventy years; any work of art that was published before 1923 is in the public domain; and many works published between 1923 and 1978 remain in copyright today.^[25] When the copyright owners of works are hard or impossible to identify and locate, as is the case for the vast majority of works published before 1978, they are referred to as "orphan works." The convolution of these rules and terms, here presented in simplified form, is the result of the continuing force of the central provisions of the Copyright Act of 1909, which was not fully superseded by the later acts; the 1909 law defined copyright in a creative work from the moment of its properly registered publication rather than creation.^[26]

The complexity of U.S. copyright law, and its partial incommensurability with copyright law in other countries, is especially onerous for scholars who publish images of twentieth- and twenty-first-century art. Nevertheless, a gradually expanding definition in practice (rather than by law) of the "artistic work" that is protected by copyright has created analogous difficulties for scholars who study works of art that have long been in the public domain. Authorized photographers of those works, or the owners for whom they make them, usually claim copyright in those reproductions, with the same temporal extensions granted artists and their heirs.

Thus, most museums now explicitly or implicitly claim copyright over images of all works in their collection, whether in the public domain or not. The same copyright ownership is implied by for-profit collections of images of public domain works, in digital as well as traditional photographic forms. Such collections include stock image providers geared exclusively to commercial applications (such as Corbis, a company founded in 1989 by Bill Gates, which describes itself as a "visual solutions provider" of all manner of images, not limited to works of art) and image collections focused on reproductions of works of art for commercial as well as scholarly applications (such as the Bridgeman Art Library and Art Resource, which present themselves as "archives" or "libraries" of art images, many of which are licensed to these providers by major museums as well as private collectors). For museums and other owners of art in the public domain, granting non-exclusive licenses to for-profit art image providers extends the commercial value of works of art in their collections.

Our study found that the efforts of owners of works of art in the public domain to claim copyright over plainly reproductive images of them is meeting with growing criticism and with legal and practical attempts at remediation. Such critiques usually argue for a distinction between "artistic" or obviously "interpretative" images of works of art and architecture on the one hand, and, on the other, "slavish copies" or "exact records" of such works.

At first sight, this distinction appears problematic on philosophical as well as pragmatic grounds.^[27] It seems easier to make for works of architecture, sculpture, performance art, and installations than for paintings, drawings, and prints, because viewing angles, lighting, and the presence of figures matter that much more in images of spatially and temporally extensive works.^[28] Yet as superior photographers of "flat" works will claim, translating an oil painting—especially one with fine-grained brushwork or heavy impasto, subtle colorism or complex perspective—into an image that will evoke its aesthetic effects in print or on screen is a creative endeavor in its own right, whose commercial value should be protected by copyright. Many contemporary artists would use different arguments to challenge the claim that imaginative yet nearly exact reproductions of flat images cannot be copyrighted. Various forms of appropriation of "flat" images, some of which may appear "exact," "slavish," and "unoriginal," have been central to art production for several decades now, and their philosophical status has been the subject of sophisticated art criticism.^[29] The argument that reproductive images of "flat" works lack the modicum of creativity required for copyright production may be appealing to scholars of paintings, drawings, prints, and photographs in the public domain, but it seems difficult to make and harder to adjudicate.

Nevertheless, it was precisely on distinctions between creative and slavish reproductions that the U.S. District Court judge in the 1998 case Bridgeman Art Library v. Corel Corporation rejected the plaintiff's claim that Corel had infringed its copyright in color images of paintings in the public domain. Corel had digitized several transparencies made and owned by Bridgeman of the works in question. The judge ruled: "There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. . .. But 'slavish copying,' although doubtless requiring technical skill and effort, does not qualify." Significantly, the judge ruled that the technical change in medium, from oil to transparency, did not constitute such originality.^[30] The section below on Responses to Copyright, Access, and Cost Challenges outlines the positive implications of the Bridgeman decision for art history publications.

In copyright law, the doctrine of fair use limits the exclusive rights of copyright holders by circumscribing certain conditions under which copyrighted material may be used without permission. Fair use offsets to some extent limitations to freedom of expression inherent in copyright. The doctrine was developed over the years in case law, and eventually codified in the 1976 Copyright Act.^[31] According to the act, fair use purposes include "teaching (including multiple copies for classroom use), scholarship, or research." The terms of fair use are highly generalized, including "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," "the nature of the copyrighted work," "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and "the effect of the use upon the potential market for or value of the copyrighted work." Under the provisions of the act, one of the purposes that may qualify for fair use of copyrighted works is "criticism." It is on that ground, along with the potentially positive impact of wide circulation on the commercial value of the copyrighted work, that art historians might claim fair use.

Fair use is not a challenge to copyright claims in specific works, in the way that the Bridgeman v. Corel decision is. The doctrine keeps copyright in an image intact, but facilitates educational and scholarly uses of such images, whether they reproduce works in the public domain or in copyright. Universities and libraries argue fair use effectively to provide scholarly content to their communities for research and study, limited in extent and duration, and, in the digital era, behind firewalls of usernames and passwords. Such content includes image collections as well as written materials.

In art history publishing, fair use may be more applicable to scholarly articles than to monograph publication, where the publisher and author have commercial stakes, however tiny, in the publication of the images. For several years, the College Art Association has advocated an aggressive stance, arguing that many reproductions of images in art historical scholarship should be qualified as supportive of "criticism," that many such reproductions should thus not require copyright permission, and that fair use offers a compelling line of defense against alleged copyright infractions by scholars who can show critical use.^[32] Publishers and authors have been hesitant to accept this untried guideline, however, and CAA is in the process of revising the statement. A recent, wide-ranging review of the current state of fair use law and policy by the Brennan Center for Justice at New York University makes clear that the doctrine has not yielded the kind of creative and critical exemptions to copyright law for which it was intended.^[33] As unauthorized uses of copyrighted images in scholarly publications rarely constitute a sufficient financial threat to incur legal challenges, there is insufficient case law to establish the purview of the doctrine’s applicability to scholarship.^[34]

For all of these reasons, claims of fair use currently promise only limited relief from problems of publishing images in print or digital form with worldwide access. The doctrine is of considerable value, however, in facilitating access to digital publications within educational and scholarly communities, where works with copyrighted images may be made available in password-protected environments.

The trends toward temporal and conceptual copyright extension have made it more difficult for scholars to take their own publishable photographs of works of art (once a quite standard practice, but now virtually unheard of in museums), and they have caused increases in permissions fees even for non-profit, scholarly publications of limited public reach. Permission fees have traditionally been based on several factors, including character of the publication and press (academic or commercial), color or black-and-white, size of image relative to page, placement inside or on cover, geographic and linguistic range of distribution, and size of print run. With digital images, color vs. black-and-white and size are no longer crucial considerations, and with online publication, internet marketing, and the globalization of book sales, geographic and linguistic range of distribution has also become less relevant. Most publishers now require their authors to obtain worldwide reproduction rights for all images in a publication.

Research into image and permission costs for reproductions of works of art in museums, libraries, and image banks suggest that most non-profit institutions are mindful of the difference between scholarly and commercial purpose, and discount licensing fees accordingly. Image banks tend to be less generous in this regard. (It is well known to scholars that most commercial institutions that own copyrights, such as magazines and newspapers, are not set up to grant special dispensations for scholarly publication, however well-intended they may be, and these special cases are left out of consideration here.^[35])

Most non-profit institutions appear to aim their fees at cost recovery, but it is unclear to what extent institutions have analyzed the full costs of maintaining rights and reproduction departments or of the fulfillment of scholars' requests. Although prices of scholarly publication licenses are often finely matched to different genres, media, and audiences of publication, there appear to be enormous inconsistencies in fee structures between institutions. Aware of these discrepancies, the Registrars Committee of the American Association of Museums in 2004 produced a wide-ranging survey of rights and reproductions practices among 111 of its member organizations, the vast majority of them art museums.^[36] The survey was intended to help member institutions clarify and develop reasonable policies in murky terrain. Review of its raw data as well as research into the image license policies of ten major museums and four commercial image purveyors in the United States and Europe yielded the following results.^[37]

Museum discounts of scholarly reproduction fees for various purposes—book cover, book interior, periodical, website—vary widely, running from minimal at the low end of commercial fees to as much as 75 percent toward the higher end. A small minority of institutions waives scholarly fees routinely. Still, the higher-end scholarly fees reported by at least eight museums surprise: $100.00 to $260.00 for color inside a book; $60.00 to $150.00 and up for black and white inside a book. The majority of reported prices range from $35.00 to $75.00 for color inside a book, and $20.00 to $50.00 for black and white. A monograph with 100 illustrations might well cost its author $5,000.00 or more in permissions costs after the images are purchased. For books on modern and contemporary art, that number is likely to be considerably higher.

Fees for reproductions in scholarly journals are not markedly cheaper than for books, running from a rare low of $10.00 to a high of about $250.00. Most fall in the $25.00 to $75.00 range. For an article with 20 illustrations, some of which are presumably reproduced at no cost, the budget could easily reach upward of $500.00.

Price policies for website uses are still young and thus less well defined; as opposed to permission policies for print, many institutions claim to set prices for any electronic publication case by case. Traditional license restrictions of language, geographic range, print runs, and even numbers of editions no longer apply. Time restrictions have taken the place of edition limitations, and this new model raises a thorny problem of publication preservation. Digital licenses frequently limit the time the image may be posted, and prices go up for longer-term licenses. The range is from about one to five years, infinitely shorter than the theoretically endless preservation of an image in a book once it has been printed. The few reported and posted prices for electronic publication fall predominantly in the $60.00 to $150.00+ range, comparable to those for print. Anecdotal reports from scholars and publishers indicate, however, that specific negotiations for high-quality digital image permissions tend to result in fees higher than those for print.

The reasons for the opaque but generally high pricing structure for digital images in this transitional moment are understandable. With the adoption of digital image delivery as standard procedure, many image providers have begun to relinquish the former separation between selling images for personal use and granting permission for publication. The loss of this distinction appears to have driven prices upward. The potential of unauthorized worldwide distribution of images at the click of a mouse, and the risk of unpalatable image uses resulting from such distribution, appear to motivate higher digital image fees. The instability and general restrictiveness of the permissions regime for digital uses are serious impediments to the productive development of electronic publications for art history.

In sum, our quantitative research suggests that editors and scholars rightly perceive total permissions expenses for books to have gone up considerably over the past few years.^[38] Even commercial publishers that could traditionally shoulder the costs of the finest illustration program permissions for survey books by leading scholars are now feeling the squeeze.^[39] This state of affairs has several negative consequences for scholarly publication in art history, where scholars have usually borne the weight of permission costs, either through institutional subventions and grants or at personal expense. As costs of illustrations have gone up, authors frequently have to consider illustration cuts that hamper arguments. And as sales have declined, scholarly books that need extensive illustration programs have a harder time getting published at all (see Costs to Publishers, below). Scholarly journals and their authors are experiencing the same pressures. At the Art Bulletin, for example, subventions for illustrations have not been able to keep pace with increasing costs. In its most recent year, authors on average could acquire fewer illustrations and licenses for their allocations, and the well-received color illustrations had to be scaled back considerably.

Scholars and editors also express grave concerns about the time and effort required to secure good images and permissions to reproduce them. It is difficult to find out from institutions how to acquire images and permissions and how much they will cost, if our experience trying to obtain such information is any guide.^[40] Although electronic communication has facilitated the process of finding images and contact addresses, most museums and image repositories have no standardized procedures or easily accessible fee schedules. Electronic or credit card payment to non-U.S. institutions is rarely available. Most institutional websites offer some guidance to the image licensing process, but other than a commercial organization such as Corbis or Getty Images, very few make it possible for the transaction to be handled through online price calculation and ordering without the intervention of a fees specialist.^[41] The commercial vendors offer the user a range of categories to specify the character of the intended image use and audience, but none of these indicators correspond closely to scholarly publication, with the result that fees from such organizations—from c. $300 per image to over $1000—tend to outstrip scholars' budgets. Nevertheless, the electronic request form developed by such organizations may well be modifiable for scholarly use by non-profit organizations, and such streamlining would be welcome. ARTstor is poised to launch one such form when it begins to manage scholarly reproduction requests for the Metropolitan Museum of Art in the fall of 2006. Its model should be reviewed for possible use as a new standard.

Art editors and art historians routinely refer to the discipline's need for high-resolution and true-color (or finely scaled black-and-white) illustrations on heavy-weight, pure white, smooth, yet minimally reflective paper—that is, high-grade, expensive stock.^[42] This is not just a matter of attachment to a luxurious product that is evocative of the value of Art, as skeptics would have it, but also one of maximizing the function of illustrations to make manifest the author's argument. An author's description of a work is always an interpretive act, and its claims need to be verifiable in the image of the work. Many reconstructions and arguments in art and architectural history depend on the author's and reader's ability to re-imagine a work's aesthetic presence. Although no image on the printed page will ever prompt an aesthetic experience identical to one generated by the work reproduced, the finest illustrations should give the reader and viewer a sufficient approximation of the work to make the argument about its visual qualities susceptible to evaluation.^[43] This requirement is doubled every time an author seeks to draw fine distinctions between one work and another, and multiplied again when the author charts filial affinities or differences among multiple works or their styles.

These requirements are not absolute, in that the image is always understood to be a surrogate for the work reproduced, and in that many descriptions and comparisons stand up even in fairly low-resolution black-and-white images. Comparisons of figure-ground relationships in portraits by Jean-Auguste-Dominique Ingres and Pierre-Auguste Renoir, say, may be fairly compelling—perhaps even more evident—in grainy black-and-white images. Other comparisons, however, are virtually impossible to sustain without high-quality reproductions. If an author wants to show how Gerard Dou, Rembrandt's first pupil, took up his master's palette and chiaroscuro while simultaneously miniaturizing his brushwork, high-resolution images are in order. And when that author then wants to argue that Dou's pupil Frans van Mieris outdid his teacher's painterly refinements by removing virtually the last visible signs of handiwork from his pictures, even finer reproduction standards are required. Although the correlation between effective reproductions and successful art historical argument and documentation cannot be quantified, it is direct, as scholarly reviews of books with either superior or poor illustrations point out routinely and with justification.

Many art publishers and scholars continue to doubt that the digital image on screen has, in its present state of development, reached the standards of reproductive value and stability of the finest offset printing, whether of analog images or digital files. This complaint is reminiscent of concerns over a feared loss of resolution and flexibility in the transition from analog slide projection to digital projection. Just as those fears have subsided with the development and increasing affordability of high-resolution digital capture and high-powered projection, so analogous concerns about the screen image as a supplement to or integral part of publication are likely to fade as more effective modes of delivering digital publication and images become available.

More serious is the absence, as of yet, of reliable standards of preservation for digital images and for the migration of their formats. To point out that digital instability may not be inherently worse than the chemical volatility of photographs is an insufficient argument for a full-blown switch to digitized visual documentation. Makers, collectors, users, and librarians of digital image collections are keenly aware that digital images will have to improve on the longevity of their analog counterparts, and several coordinated efforts are under way to develop industry standards.^[44]

Limited reader access may be the most serious current obstacle to the widespread use of illustrated scholarly publication in digital form. There are, as yet, no cost-effective digital publication models that protect the investments of scholarly publishers, hold them indemnified against copyright challenges, and yet make the publications as globally available as authors (and their home institutions) would like. Even digital texts without high-grade illustrations often restrict access to narrowly defined reader communities. Newsletters for scholarly societies, for example, tend to restrict the most significant parts of their websites to protect their dues base. Digital publications that would aim to match the high-quality output of the finest illustrated monographs are likely to find image copyrights for top-resolution illustrations an even greater constraint in the clickable medium than it is in p