The Association of Art Museum Directors has released its long-awaited policy that deems working with, or using, low-quality digital thumbnail images a copyright fair use. This much-debated policy should provide greater clarity on a controversial but common practice that could have bedeviled smaller museums and that might have proved a stumbling block to art institutions as they sought to make a place for themselves by displaying their collections online and with social media while also respecting artists’ rights.
According to the group, its mission is to promote “the vital role of art museums throughout North America and advance the profession by cultivating leadership and communicating standards of excellence in museum practice.”
This policy statement for its member organizations (numbering 198) focuses chiefly on the practice of using for online and other displays thumbnail images of artworks in existing museum collections. The group members — including notable Los Angeles institutions such as the Hammer, the Los Angeles County Museum of Art and the Getty — define a thumbnail image as being a “low resolution, small version of less than commercial quality (less than 250 x 300 pixels) … digital image that is typically used in a collection image database, on a web page, or in an online publication to represent an image or to provide a link to other content, such as a larger version of the image.”
And though, “Member museums must respect the rights of artists and copyright holders to protect the integrity of their works and to receive the benefits of the rights accorded to artists and copyright holders by law,” the group says, “there are many uses of thumbnail images by museums that meet the statutory fair use test” under United States Copyright law; Section 107 of title 17, U. S. Code.
The museums, many of them smaller operations without in-house counsel to guide them through complex copyright conundrums, embrace their educational roles to advance their fair-use arguments when using thumbnail depictions of items in their collection, following the four key factors under Section 107 that would support their position. The quartet of tests in Section 107 that would support the museums’ fair-use claims include:
- The purpose and character of the use, including whether such use is of 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
- The effect of the use upon the potential market for, or value of, the copyrighted work