For some projects, obtaining the necessary permissions to digitise a given item can be a straightforward task, especially when the material to be digitised has little economic value attached to it. But for those who wish to digitise material where the rights holders have an economic interest in the publication of their work, as happens often in the contemporary performing or visual arts, much greater attention must be paid to developing a licence and carrying out the task of getting the licence signed.

This article looks at one particular project, AHDS Visual Arts' Fine Art Project, examining the particular approach it took when gaining permissions to disseminate digital versions of works of art created by various British fine artists who studied at various art schools within the country. By exploring the path followed by this particular project, this article hopes to articulate some of the general factors any project needs to take into account whilst dealing with copyright, emphasising that beyond creating a licence, tracing and then talking with a copyright holder can be an equally important task.

The UK's art schools have produced a distinguished array of artists, many of whom - for example Bridget Riley or Henry Moore - have gone on to become renowned art world figures. In the 1970s, the Council for National Academic Awards (CNAA) marked the achievement of practice-led teaching by collecting an array of paintings, prints and sculptures from British alumni, which served to illustrate that, in teaching, practice is an essential prerequisite to theory . This collection includes both work carried out by artists when students or later work that other patrons have donated to the collection after the artist has become an established name.

In the late 1990s, the CNAA Art Collection Trust explored the idea of expanding the collection by acquiring additional work from more alumni who have made a significant contribution to UK fine art education through practice. The plans were fleshed out and it was realised that exploiting a web-based solution would allow the collection to overcome the many logistical problems that trying to develop a complete physical collection would entail. Thus the Fine Art project was born.

The project, funded by the JISC and run by Polly Christie of AHDS Visual Arts, focussed on producing a streamlined critical core of works from 10 leading art schools and display the resulting images on a project website, to be accompanied by appropriate supporting texts. A Hanging Committee was organised, and they had the initial task of shortlisting the art schools and artists who it was felt best represented the tradition of UK art school education. Once this had been done, the project then proceeded in a rather novel fashion. Each institution was given £5,000 to organise the management, digitisation, cataloguing and rights clearance of their selection of works. Various guidelines were created centrally, dealing with managing workflow, capturing the images in digital form, and establishing the necessary documentary information to accompany the images. And besides the guidelines for digitisation, a Fine Art Project Licence Agreement was developed.

It was obvious from the very beginning that dealing with copyright would be a particular concern for such a digitisation project. The vast majority of the selected works were still protected under copyright; only Birmingham Institute of Art and Design and Norwich School of Art and Design were digitising work where the copyright no longer subsisted (the artist having died more than seventy years prior to the digitisation). This meant that, in many cases, it would be necessary to obtain permission from each rights holder in order to digitise, disseminate and archive the works.

It was decided that the development of a three-way licence would be the most suitable option, allowing for agreement between the artist / rights holder, the Higher Education Institution owning the artwork (but not the rights), and AHDS Visual Arts. This licence was then to be distributed to each of the institutions organising their own digitisation on behalf of the project. It would have been feasible to develop a two-way licence between the artist and AHDS Visual Arts. But the idea was to include the third party as well, which would give the art school / HEI the permission to re-use the digitised image for other projects. By sharing the permissions with the HEI, it was hoped that they would exploit the digital images in later projects, giving more incentive to participate and thus helping them remain engaged in the process of digitisation. As one can see from section 3.ii of the Licence, the HEI gains the right to make "any private, research or educational use compatible with the educational or research purposes of an educational institution."

The Licence was developed from a medley of other sources. There were no special demands being made of the artist's rights, so it was thought that the agreement could follow a fairly standard approach. As can be seen, this involves many sections familiar to this type of document. A section on 'Warrant and Indemnity', for instance, articulates that signing the licence will not effect the rights-holder's relationship with any third party. There is also an introductory section with some key definitions, such as 'Browse' or 'Surrogate'. This is a very useful addition to digitisation licences, especially when not all the parties involved may be familiar with the technical terms used in the document. Even with these descriptions, it should be added, one of the institutions involved decided to add a covering letter summarising the main points of the licence in plainer terms.

In terms of most digitisation projects, it is the section (labelled 'Grant' in this particular licence) on what the licence permits the digitiser to do that has most scope for adjustment according to the project's needs. In the case of the Fine Art project, the licence gives the project the necessary rights over the full length of the digitisation chain - so it includes permission to convert the original artwork into digital form, the permission to disseminate the image in digital form, the right to catalogue the digital work, the right to advertise the resource, and the right to preserve the digital image.

Each part of this is phrased quite broadly, giving the project a fair bit of freedom in what it does. Any project that composes a licence will need to be aware that such a list may have to be altered according to its own project's aims, and the particular requirements of the original rights holders. If a digital image is to cropped or edited this may need to be cited in the licence; the wording or caption to be associated with the digital copy may need to be agreed upon; if the digital image is to be archived by a third party this needs to be acknowledged; other forms of dissemination (such as by CD-Rom, Intranet or print out) may also need to be acknowledged as well as any security measure to counter unlimited dissemination (such as watermarking or password control). And if any commercial gain is to be made from the digital data, this will need to be negotiated and settled within such a licence. Indeed, the introduction of a financial element may require a contract that is more detailed than the licence reproduced here.

On completion of the draft Fine Art licence, it was forwarded to Surrey Institute of Art's (SIAD) legal team for verification by professionals that the licence was as watertight as was required. As other projects have discovered, this can be a costly business, and the legal team, as happened here, may not do much more that suggest rephrasings of the licence. However, this was a reassuring process to undertake, especially for projects where there is a degree of financial risk involved if copyright is breached. The process also served to satisfy SIAD's legal department since SIAD would be signing the Licence in its capacity as the legal entity that represents AHDS Visual Arts.

Once the licence was completed, it was distributed to each of the institutions undertaking the digitisation along with the guidelines for capturing and cataloguing the images. Each college then had the task of contacting the rights holder and getting the agreement signed.

It fell to Stroud Cornock, curator of the CNAA Art Collection Trust to contact the 53 artists whose work was in the CNAA Art Collection. The more problematic aspect of this part of the project, Stroud felt, was not discussing the legal context of the licence but actually tracing the rights-holders. For well-known artists this was not so tricky; agents and galleries were often in a position to negotiate and sign on behalf of the artist. In other circumstances, the Design and Artists Copyright Society (DACS) would act as a mediating agent, and they provided their own licence form for doing so. But if there was no immediate contact with a rights holder, detective work was required. Amongst various sources, Stroud utilised the Internet, the staff and libraries of public art galleries, libraries, private galleries and dealers, trade directories and informal contacts with the artist's contemporaries to try and locate the rights holder. This was all work he judged particularly time-consuming in the context of the project as a whole. Often Stroud did manage to obtain some initial contact with an artist, but months could pass before they would reply. This was symptomatic of a more general problem, where rights holders could verbally indicate their willingness to be involved in the project, but not get round to signing the necessary documentation that would have given the project the all clear.

Resourcefulness, persistence and a willingness to use a personal approach were cited by Stroud as being key attributes in completing this task, especially in recontacting artists who had not returned the necessary documentation. It was also important that rights holders could trust those managing the digital images. Stroud noted that it was probably easier for a well-established figure such as himself to discuss the matter with the rights holder, some of whom were hazy about the precise ramifications of having their work available on the Internet. Such one-to-one discussions gave a greater sense of the validity and trustworthiness of the project's aims, a sense that was enhanced when it was made clear the project was based in established educational institutions and had a committed pedagogic aim. Others involved the project concurred with this. Advice from solicitors working for the University of Ulster considered that such a personal approach was important so that the rights holders were made fully aware of what the licence entailed. Of course, projects will be aware that the sheer time such a one-to-one approach involves means it is not particularly feasible when a large number of rights holders needs to be contacted.

A variety of other issues arose. Some artists' agents requested fees for the right to digitise the work. Thankfully, the amounts involved (around $200 for one well-known British artist were small and feasible given it was a one-off payment. This would, however, have been a different story if the digitisation of a large number of images by the same artist had been planned. Other projects in such a position need to consider at the outset whether they will allocate some of their funding to pay for copyright clearance.

In a small number of instances, either the artist or the art school did not wish to utilise the licence provided. The Fine Art Project was happy to cede to such demands, as long as they still got permission to use the digital image. The Henry Moore Foundation wished to use its own licence, which it did, although one drawback of this is that it allows for only a limited timescale for the dissemination of the image, and the project have to renegotiate with them every two years to allow for its continued dissemination. Another artist was wary of signing rights allowing the images to be used in institutional publicity, and so opted to sign a standard AHDS deposit licence rather than the specific Fine Art Project licence. Such problems with the licence, it should be noted, were rare.

In relation to some artists, particularly those that had deceased, it proved impossible for Stroud (and others institutions) to locate the rights holder at all. In situations such as these, it was the decision of each institution as to whether they should publish the images as part of the Fine Art Project. Generally, institutions felt that they could proceed with digital publication. Should any rights holder complain about a digitised image, each institution could show their professionalism and good faith through the way they had approached the copyright issue. For example, as part of the project each HEI was requested to record diligence files on their copyright quests. This normally consisted of a spreadsheet tracking the copyright inquiries they had made for each image and the current status of each inquiry, and printed records of each item of correspondence relating to the copyright work undertaken. Additionally, the Fine Art Project embedded invisible watermarks (using a Digimarc package, in combination with Adobe PhotoShop) in every digital image to be disseminated. While watermarking does not 100% guarantee that digital images will not be used illegally, it can, in combination with the appropriate software, make pirated images easier to trace. Such a tactic indicated that the project had established mechanisms to help protect every rights holder's property.

Dealing with copyright has been one of the most tricky parts of the Fine Art Project. Even though the legal terms have not been too confusing and the artists and rights holders generally supportive of the project, developing a licence form, tracing the rights holders and then getting them to sign the document is a sizeable bureaucratic procedure. But dealing with copyright is very much a necessary task. Firstly, it helps prevent the serious legal difficulties which could have dramatic ramifications for this or any other digitisation project. Secondly, and more positively perhaps, it helps ensure the trust of the artistic community the project wants to represent, which in turn will help garner their support for the Fine Art Project and perhaps even the principles of digitisation in general.

Many thanks to Polly Christie and Stroud Cornock for their help in developing this case study.

First Image: Portrait of James Kirkup by Maurice De Sausmarez
Second image: Plant Study - Marrow Showing General Growth by Robert Ball

The Fine Art Collection

Feasibility Study for the project, including information on digitising, cataloguing and locating copyright for the images in question.

Fine Art Project Licence

Page last modified: 2nd August 2004 by
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