In October 2010 four university presses—the University of Washington Press, as the lead applicant, plus Duke University Press, Penn State University Press, and the University of Pennsylvania Press—submitted an application to the Andrew W. Mellon Foundation for a grant of more than $1 million in support of publishing first books in art history in both print and electronic formats. In December of that year a grant of $1,257,100 was approved for the Art History Publication Initiative (AHPI). With an extension, the grant period ran for nine years, from 2011 through the end of 2019.
From the first, AHPI envisioned making progress on rights and permissions matters as one of the key elements it would need to accomplish. The AHPI presses knew how crucial it would be for the success of the program to make more effective and efficient the process of obtaining the rights and permissions needed for electronic publication of the images that are essential to books in art history. Even in the case of works of art that are in the public domain, permissions are often required to obtain and publish high-quality reproductions, which are often closely controlled by museums or archives.
The AHPI grant application began its section on image permissions by citing Ballon and Westermann’s two primary recommendations in Art History and Its Publications in the Electronic Age:[1] to work toward a more cost-effective and flexible system for obtaining images for publication and to take greater advantage of the potential for electronic publication. It went on to state:
It is, of course, the intersection of these two issues—permissions and electronic publication—that presents one of the central challenges to publishing in the field of art history. Books in the field risk being left out of the digital revolution precisely because of difficulties in obtaining permission for digital reproduction of illustrative material. Obtaining reproduction-quality illustrations and the permission to reproduce them is time consuming and costly for both publishers and authors. Acquiring and paying for permissions are typically the author’s responsibility, but verifying the quality of images and the correct documentation for each permission falls to the publisher. This is often a cumbersome and protracted process that results in duplicated effort and significant overhead. (AHPI application to the Mellon Foundation, 14 October 2010)
The AHPI grant from the Mellon Foundation covered the costs of authors’ permissions fees up to a certain level, so that in most cases the authors would be able to include in their first books all the images deemed appropriate for inclusion, without having to spend an inordinate amount of their time and effort rounding up the funds needed to cover the permissions costs required for digital publication of these images. It also covered the costs of the publishers’ time needed for working with the authors to obtain and clear the necessary permissions—a process that always requires much time and attention from publishing staff, but especially so with first-time authors.
The grant funding provided the resources for the four university presses to publish fifty-four monographs in art history by first-time authors, with all of these books fully available in electronic form, including all of the images within the books. The grant was intended not only to support particular books that otherwise would have been very problematic to publish in digital formats but also to enhance the ability of the presses involved to obtain electronic image rights, and thereby—through concomitant education of both rights-holders and publishers—to push forward the whole ecosystem for granting and obtaining these rights.
And we believe that AHPI did play a substantial role in speeding up the evolutionary process with regard to digital image rights in art history books. As Ellie Goodman, the art history editor at Penn State, put it, “The AHPI presses working together made the conversation louder.” She pointed out that AHPI’s funding of a substantial set of art history books that, per the terms of the grant, had to be published fully in electronic form made the AHPI publishers more aware of the nature of rights-holders’ misperceptions and resistances, and more determined in dispelling the misperceptions and in pushing through the resistances.
Cali Buckley, the AHPI permissions manager from 2013 to 2015, said, “AHPI’s concentration of art history books helped to force the permissions-granting institutions to realize that they needed to formulate workable policies with regard to electronic rights and permissions. AHPI helped make it clear that the requests and problems the rights requestors were raising were not going to go away, so they could not simply be ignored or dismissed.”
Why publishers need to publish digital art history books
To understand why the terms imposed by many rights-holders are an obstacle to scholarly publishers in the field of art history, it helps to understand why it is important to publish these books in both digital and print form, and how the publication and dissemination of digital books takes place. Over the past two decades, academic libraries have been actively seeking to reduce their print collections and increase the proportion of materials they collect in electronic formats. An electronic book does not take up valuable library space and can be accessed anywhere by the library’s user community.
For university presses and similar scholarly publishers, academic libraries have always been a crucial market. But that is even more so the case now, as library users have become accustomed to finding nearly every publication they need, right in their own offices or homes, through the content that the library provides them in electronic form. In the world of academic journals, very few individuals any longer subscribe directly because their libraries supply them with ready access to the journals they want, often via digital collections like Project MUSE or journal collections directly from the publishers. In the world of academic books, this transformation is occurring more slowly because reading an entire book online is something many readers are not quite ready to do as their main form of book reading—though they are very happy to use digital formats for searching and for discovering which books they do want to read in full.
Thus there are still many individual purchases of books, often in print form, though even for individuals the proportion of e-book versus print purchases is gradually increasing. Libraries are also more willing to purchase a book in print than they are to purchase a journal subscription in print, and sometimes they even purchase the same book in both formats—thinking of the digital format as mainly for discovery and the print format as mainly for thorough reading.
But that is more expensive, and library budgets are perennially tight. So library sales are increasingly moving toward digital formats, sometimes here again through the purchase of substantial book collections rather than individual titles, with those collections available from such sources as JSTOR, MUSE, ProQuest, EBSCO, and University Scholarship Online. Overall, at Duke University Press (an industry leader in digital sales, with direct sales of its own full books collection), more than 30 percent of the books-related revenues in 2018 came from the sale of electronic formats, to individual consumers and libraries combined.
Art history, as a publishing field, has lagged behind most other disciplines in this shift to electronic formats, largely because of the problems around obtaining and paying for image permissions for digital publishing. As library purchases of printed books become less and less common, academic publishers may find that they cannot adequately sell books that are available only in printed form. As a result, art historians may be left behind—with fewer opportunities for publication even in print—unless the problems that have hindered the publication of art history books in digital form can be solved.
As the AHPI application put it quite succinctly, “Books in the field risk being left out of the digital revolution precisely because of difficulties in obtaining permission for digital reproduction of illustrative material.”
What publishers need to publish digital art history books
First, the publisher needs to know from the author what images they want to include in the book, and then they must make a determination as to whether that number is a reasonable number with regard to both the amount of work and cost needed to obtain the images and the needs of the book’s readers. It is not reasonable in most cases to expect readers to go outside the book to look at the images referred to, even if looking at the images is essential to understanding the book’s arguments.
Second, the publisher needs to know whether it has the rights needed to include the appropriate set of images in the book. This involves making a determination about whether the artwork is itself under copyright, and also making a determination as to whether the reproduction of the artwork to be used publishing the image is under copyright. For example, a photograph of a sculpture may be under copyright if a modicum of creativity was used in choosing the angle from which to take the picture, even if the sculpture itself is in the public domain.
If the artwork or the reproduction of the artwork is under copyright, then a US publisher needs to make a determination as to whether the use of the image in the pages of the publisher’s book is a fair use under the terms of the United States Copyright Act. In cases that are not clear-cut, answering this question generally requires legal expertise in the area of intellectual property. Legal expertise may also be needed to answer questions about whether meeting the terms of the fair use provisions of US copyright law is sufficient in the case of an artwork that was produced in another country, especially if the book will be available for sale in that country. For example, European fair dealing laws (which are roughly the equivalent of US fair use provisions, but which differ in several ways, and particularly in including “moral rights” clauses) are in many ways stronger in protecting artists’ rights than the US laws.
If a determination is made that the author does need to seek permission from the artist (or the artist’s estate, or the artist’s gallery, or the artist’s contracted rights-granting organization), then the publisher must inform the author about just what rights it expects to have granted. Generally, the publisher expects to have world rights at least to include the image in English-language versions of the book, though some of the AHPI publishers insist on world rights for use of the image in all languages in order to facilitate the licensing of translations. The publisher also expects to have perpetual rights to use the image within the current edition of the book, for as long as the book remains available. (If the book is revised enough to constitute a second edition, then publishers generally do understand that they need to renew the original permissions grants.)
With print-on-demand capabilities, books are no longer expected to go out of print, and even if a book did go out of print, there is no reason publishers can now envision for it not to be available forever in some digital form. Thus term limits on a book’s images are very problematic. Nonprofit scholarly publishers simply do not have the resources to give extended attention to ongoing negotiations over renewal of a book’s image permissions, especially for books that are by that point selling in minimal quantities. This is especially true since the terms of those permissions might time out at different times for the book’s various images.
In addition to the time and trouble involved, term limits are problematic for academic publishers because there is also the risk that some rights-holders might at that point take advantage of the fact that, in effect, they have the publisher over a barrel. If the rights-holder chooses to apply unpalatable terms for the permissions renewal, or charge an exorbitant rate for the extension, the publisher has no good options. The only available choices are to accept those terms and pay that rate; to put the book out of print, even if it still has scholarly interest and value; to create a new version of the book that simply leaves out the timed-out images, causing frustration for readers who see in the text something like “see image 14” and then cannot find that image; or to create a new edition of this older book that does not require the use of the timed-out images to make sense.
Third, the publisher needs to obtain a high-quality copy of the image that it can use to reproduce the image well in the pages of the book. Even for an artwork that is in the public domain, the only available reproduction-ready copies of the image might be under the control of the museum or archive that houses the original artwork, and a license often must be signed before the image-holder will release that reproduction-ready copy for use in the book.
Finally, in this increasingly digital age, the publisher generally needs the granted permissions to include publishing the image in both the printed versions of the book—which might include hardcover and paperback versions, but is generally not more complicated than that—and also in all digital versions of the book, which usually involves a wide variety of versions and complications. This was an explicit requirement in the case of all the AHPI books, where reproduction of all the images in digital form was prescribed by the terms of the grant. But it applies also in the case of any book that the publisher expects to publish in digital form. Redaction of images from the digital versions of a book, with some text put in the place of the image that states that a printed copy of the book (or some other reproduction of the image) must be found if the image needs to be seen, is not impossible. But as of 2019, most e-book sellers will not accept for sale books that include redactions. And redactions are very frustrating to readers who encounter the book in a digital format.
The variety of versions and complications for digital versions of a book arise from the variety of ways that digital books can now be accessed. E-books are sold to individual consumers in fairly straightforward ways: for example, from Amazon one purchaser buys the book at one set price for use on a few specific devices. But e-books are also sold to libraries with a wide array of access methodologies and under a wide array of possible licensing terms. A rights-holder who expects to provide a grant of permission that applies to a set maximum in terms of number of copies sold, based on how it worked in print—or even in terms of what seems analogous, such as a set number of digital downloads—needs to be educated about the complications of short-term library loan programs from library e-book vendors, about the regular provision by publishers and vendors of site licenses that allow unlimited numbers of simultaneous users without any reporting back to the publisher about the number of uses, and so on.
In sum, in order to publish scholarship in art history and related fields effectively and in a sustainable way, in line with our mission and the expectations of our customers (both individual and institutional), what a university press or a similar scholarly publisher needs from all those who grant image permissions—both rights-holders and reproduction-ready image holders—is as follows:
We need world rights, much preferably in all languages, without time limits or print run limits that no longer have meaning, at a single fair and reasonable fee that covers both print and digital publication.
The situation in 2010, as described in the AHPI grant proposal
In 2010 obtaining the rights for reproduction of images in electronic form within scholarly books was aggravatingly difficult. Most rights-holders did not understand all the factors involved in providing rights for electronic publication in book form of the images they controlled, which they generally saw as threatening to let those images loose on the Internet, and thus weakening or eliminating their control of the images.
So the instant reaction of many rights-holders was to say no to giving any permissions at all for digital reproduction of the images they controlled. Other rights-holders were willing to give permission for digital reproduction within the pages of a book, but only for a period of time far shorter than the lifetime of a scholarly book, out of a sense that the world was changing in ways they could not anticipate, so they did not want to be “locked in” to any long-term permissions agreements.
And even those who were willing to grant digital permissions for the life of a book’s edition generally wanted the other terms of the digital permissions grant to match what they were used to in print, where the publisher was expected to state the initial print run, with the cost of the permissions based on the size of that print run. (Even in 2010 this did not match the way academic publishers were starting to handle printing. At about this time offset printing, which required a fairly long print run to make sense economically because much of the cost was for make-ready—i.e., for starting up the presses on a particular book—started to be replaced by digital printing, with a level per-copy cost. This created strong incentives to print much shorter runs and then reprint as more copies were needed, so as to save on inventory-storage costs and avoid overprinting.)
Important lessons learned through the AHPI program
The four AHPI presses shared with each other on a regular basis the lessons we were learning during the course of the grant period. In summary, these are the lessons we generally agree that we learned from our work to obtain digital rights.
Be persistent. All the AHPI presses learned this lesson in one way or another. Without the AHPI program, some of the presses would have been willing to include some images in the print versions of their books that they could not include in the electronic versions. But because the AHPI program required digital publication of every image included in the books funded by the program, it forced the permissions requestors to be persistent in insisting that rights for electronic publication had to be granted in all cases where the book’s arguments would not work adequately without the presence of the image in the book. And in almost every case the added persistence paid off with a grant of the needed permissions. On the other hand, it came at a high cost in terms of attention from busy university press editors (and sometimes directors)—attention that in many cases would not have been given if a grant requiring permissions for digital publication of the images had not been in place.
Everything is negotiable. The need for extra persistence taught the AHPI presses that refusing to take no for an answer generally revealed that the first negative response was not as firm as it appeared. The person responding initially to a permissions request is often at a low level in the rights-holding organization. That person generally does not have the authority or expertise required to negotiate with a rights requestor. But someone higher up in the organization does have that authority, ability, and knowledge. The key is being persistent enough to get past the initial responder and reach the appropriate higher-level decision-maker. Sometimes, once that was accomplished, the next conversation was easy and came to a quick resolution. In other cases, getting to the right person was just the beginning of the needed persistence and persuasion.
Teach lessons. Once we were able to reach a key decision-maker, we needed to be able to explain, often from the ground up, how digital publication works for a scholarly publisher and why we needed the permissions we were requesting. We had to explain repeatedly that the image would only be used within the pages of the book and would not be available for general reproduction. We had to explain that, more and more, academic libraries were buying our books exclusively in digital formats, and if they did that the scholars and students reading those books could not be expected to go find a printed copy in order to look at the images.
For example, in 2012 Duke University Press (DUP) was told by VAGA (the Visual Arts and Galleries Association, which represented many important artists on the clearing of reproduction rights) that it was limiting all e-book licenses to five years. A series of e-mails led to a phone call between DUP’s director and the VAGA staff member in charge of licensing and royalties, and then another set of e-mails, with the VAGA staff member saying, “I would be happy to explain our position to you” and the DUP director saying, “I do hope you’ll also give me a chance to explain how I see it.” An excellent exchange of views led to an invitation for the DUP director to meet with the VAGA executive director on an upcoming trip to New York. An emergency for the executive director caused the meeting to fall through, but a subsequent phone call was arranged between the DUP director and the top three VAGA executives, which VAGA apparently found very educational. In the end, VAGA was still uncertain—willing to agree to lift the term limit in that particular case but not ready to change its policies—so the DUP director suggested that VAGA talk to the associate director of Project MUSE for confirmation on some of the points about electronic publication. Apparently that call never happened, but the next request DUP made of VAGA was accepted without any term limit, and other presses began reporting similar responses.
Who you know often does matter. The VAGA example above is a case where the requesting publisher pushed its own representation to the highest level of the organization and then made a special effort to get acquainted with the principals at a major rights-granting agency. That is, of course, not always possible and is worth doing only for a regular and prominent grantor of image permissions. But often a book’s author is well acquainted with one or more staff members at a rights-holding archive or museum, because that is where they did much of their research. All the AHPI presses agreed that encouraging authors to use those personal connections almost always paid off when a permissions request for electronic rights was being denied or stalled. This was especially true in two sets of cases:
- For rights-holders outside of the United States, often the toughest nuts to crack, the ability to speak or write in the language of the rights-holder was sometimes essential, along with patient willingness to educate and negotiate.
- For contemporary art, often the author would know the artist personally or would know the artist’s gallery. Even if those artists had contracted out the handling of their image rights, when the artist or gallery asked that a certain permission be granted, it almost always would be.
Support and educate the authors. For making international requests and requests of museums and archives where they had personal connections, the book’s author was often most successful. But in many cases these authors needed considerable amounts of back-up, coaching, handholding, and pushing on the part of the publishers. The AHPI program was aimed specifically at authors’ first books, and those authors often know very little about publishing. Unfortunately, how to work with a publisher, including how to request image permissions, is a topic that is not taught in graduate school, even though it is essential to building an academic career in art history and related fields. Thus the teaching on these matters falls usually and mostly to the book’s acquiring editor and their support staff.
Where we are now, in 2020
By 2020 the picture had changed substantially from what it looked like in 2010, though there is still much work to be done. Although the Art History Publication Initiative certainly cannot claim full credit for these changes—other parties, most notably the College Art Association, were pushing in much the same direction—it was an important force in pushing for the needed changes. The dependence of the AHPI funding on digital publication of each book, including publication in electronic form of each image within those books, created a concentrated (and sometimes concerted) effort from the four presses involved to push rights-holders to reconsider how they were responding to requests for publication of their images in books that included electronic formats.
Acceptance and expectation of digital publishing of scholarly books in art history. Resistance from rights-holders to publishing images at all within digital versions of scholarly books, which we experienced regularly in 2010, is almost never a problem any longer. It is understood and accepted by almost all rights-holders that scholarly books in art history—even if not yet all books in art and art history—are now being published digitally in almost all cases. And for the most part it is understood by both rights-holders and publishers that any image that appears in the print version of a book must also appear in the simultaneously published electronic versions.
This was a basic principle of the AHPI program because it was stipulated by the Mellon Foundation as a requirement for all of the AHPI-funded books. But it has not caught on fully, even among the AHPI presses. As they work with non-AHPI-funded books, two of the four AHPI presses say they are willing to redact images from their digital books if the permissions-clearing process hits obstacles or if the added cost for electronic permissions is deemed prohibitive. The other two are no longer willing to redact any images from their digital books, as they would have done back in 2010, unless the circumstances are truly extraordinary.
Downsampling. Publishers have learned over time that the images in digital publications can be effective without needing to be of the same quality as the images in their printed books. Agreeing to “downsample” the images to a certain number of dots per inch, at levels that will work for the readers but that will also satisfy the rights-holders that the image cannot be reproduced in ways that threaten their control of the image rights, has become an effective way of reassuring formerly reluctant rights-holders.
Term limits. The desire of many rights-holders, and especially holders of image rights, to insist on term limits for electronic rights remains extremely problematic. The rationale for digital term-limits is often stated to be uncertainty about how electronic publishing will evolve. University presses generally counter this argument by saying that the image will only be used within the pages of a particular book, no matter how that book is being made available to its readers; and that, with electronic formats and print-on-demand now available to us, we expect to keep those books available practically forever, unlike a trade publisher, because we have a scholarly mission.
Some publishers, including some of the AHPI presses, seem to accept term limits based on a sense that nobody will ever remember when those terms have expired. While that might well have been mostly true in the past, it may not be true in the future, as the databases that rights-holders use to track the permissions they have granted become increasingly sophisticated and effective. And the willingness of some publishers to accept term limits makes it all the harder for those who will not accept them.
For those publishers unwilling to accept term limits on the digital versions of their books, the same sort of education, persistence, and willingness to negotiate language that used to apply to getting any electronic permissions at all are still in order, and necessary all too often, with regard to term limits. Explaining to rights-holders how the sales of digital books to libraries work, with perpetual access being promised, is often helpful. Explaining to rights-holders how impossible it would be for the publisher to track and deal with term limits within the same book for images that time out in five years, eight years, ten years, twelve years, and so on, is also often a useful educational tactic. Peer pressure also sometimes works: naming some highly respected rights-holders working in the same arena who do not require term limits, and then suggesting that the recalcitrant rights-holder talk to them about why they are willing to allow life-of-book terms for their permissions grants, has on occasion proven to be what it takes to do the trick.
Sales/downloads quantities. Somewhat less prevalent but equally problematic is the idea that e-book sales or downloads can be limited, in the way that a print run can be limited for a printed book. Some rights-holders are used to setting their permissions fees based on print run, and they want to be able to do something similar for electronic forms of publication. Again, persistence and education are needed here. While sales to individuals or downloads by individuals can be tracked, most sales of scholarly books in art history are to libraries. And most of those library sales are via site licenses, including many sales that involve licenses to a large collection of books, often sold to the library not by the publisher but by a third-party vendor. In those cases, the publisher has no idea just how many people are using any particular book, and in what ways. (Quite often, permissions granters want to limit the number of “downloads,” but this raises additional questions: is accessing a book on-screen the same as “downloading”? Even if a publisher did have good data on screen access, it would still be unclear what should count as a “download.” Should someone who pulls up a book online to glance at its table of contents or index for a few seconds “count” the same way as a reader who has the book on-screen for several hours?)
Furthermore, some of the sales of individual books to libraries are in the form of short-term loans, which are very different from perpetual site licenses. And counting how many of which sort of sale is being done by each of the library booksellers a publisher is dealing with is simply impossible, because the information comes to the publisher in a variety of reports, in widely varying formats, from a variety of retail and library e-book sellers.
Generally, it takes longer to convince a rights-holder to listen to such an account than it does to convince the rights-holder that counting sales or downloads is impossible once they have started listening. Since getting them to listen can often be difficult, there is often a strong temptation to put down some number and move on, figuring that the rights-holder will never know whether that fictional number applied to an uncountable situation has been exceeded. But that risky and unethical shortcut only perpetuates the rights-holder’s belief that sales or downloads can be counted accurately.
Changing and varying levels of fair-use assertiveness
The extent to which fair use is an important consideration for university presses publishing images in scholarly art historical monographs depends greatly on the time periods on which the publisher’s program focuses, since works from before the twentieth century are generally not under any copyright protection.
At two of the four AHPI presses, fair use was generally not deemed an important consideration in dealing with art history books. The negotiations they were conducting over image rights were generally not over the right to publish the image itself, but over the ability to obtain a high-quality reproduction from the owner of the art object. One of these editors explained that most university presses have no legal expertise in-house, so they need to depend on the university’s office of legal counsel, which tends to be slow to respond and extremely risk averse. That makes many university presses leery of book projects, such as those on modern or contemporary art, where copyright issues must be dealt with knowledgeably and carefully.
One AHPI editor suggested that while fair use was an important consideration at her press, for those books that were to be included in the AHPI program she had, for copyright reasons, tended to avoid work on modern and contemporary art, knowing that under the AHPI guidelines digital publication of all the images would be required. Thus for most of this press’s AHPI books, the need to invoke fair use did not generally come into play, but as with all the press’s publications, the ability to obtain high-quality reproductions from the owner of the art object or another source remained an important consideration.
The one exception among the AHPI presses was Duke University Press. Its art program focuses on modern and contemporary art. And strong legal expertise has been readily available there through the combination of a director who knows and cares about intellectual property issues and is willing to take educated risks in this area; an assistant director for contracts and intellectual property with a law degree; and an IP consultant who is greatly trusted by the university counsel’s office and who has urged the press—and in fact, at various workshops over the years, the entire university press community—to be assertive on matters of fair use. Thus at Duke, over the course of the grant period, the press was becoming steadily more assertive with regard to making fair-use claims for its art history books.
The AHPI editor mentioned above also talked about her growing involvement with IP issues over the course of the AHPI grant, saying “AHPI pushed me into bigger conversations, especially with the College Art Association. It’s been great to have Duke out front, taking risks and pushing the limits. And now with the CAA Code of Best Practices in place, we really should all be more willing to take those risks.”
The CAA Code of Best Practices in Fair Use for the Visual Arts[2] was published in 2015. But it has only slowly started to affect actual practice among the university presses, because of their lack of legal expertise and university backing for taking risks.
What might best show the way, it seems, are a few dramatic examples of asserting fair use, in accordance with the principles and practices described in the CAA code. Duke is, as of this writing, deeply involved in such an example. In December 2019 it successfully, and to wide acclaim, published a book on Picasso’s Les Demoiselles d’Avignon, written by a former president of CAA (and thus not an AHPI book, because it is by no means the author’s first book). This book asserts fair use worldwide on images that are under copyright from the Picasso estate—including in France, where copyright on images is very strongly protected—after thorough legal vetting and resultant adjustments of the text, at a substantial cost for the attention of a topnotch outside legal counsel, to ensure both the press and its university authorities that this test case can fully withstand any resultant legal scrutiny.
Financial considerations
Even when they act very cautiously and avoid incurring high costs for legal counsel, publishing art history books is unusually expensive for university presses (including both staff time for design and production work as well as actual billed costs) because of these books’ unusually high preparation and printing costs—for example, these books often involve complex design, color reproductions, larger trim sizes, and significantly more expensive paper, either for inserts or throughout the book.
The AHPI grant explicitly did not cover any printing costs. The production-related costs it did cover (such as copyediting, design, and typesetting) helped the AHPI presses afford the printing costs in some cases where those costs were not especially great. But in many cases those extra costs had to be covered through other sources of subvention. This is something university presses are used to doing and have various sources for, including publication subventions from the author’s department or university as well as grants from other organizations, such as several funds administered by the College Art Association.
In the university press world, permissions fees are traditionally (and contractually, in the case of all four of the AHPI presses) paid for by a book’s author, rather than by the publisher. In the standard university press publishing contract, the author promises the press that none of the material in the book infringes on anyone else’s rights and that written consent of rights-holders to use, quote from, or reproduce all material for which such consent is required has been or will be obtained. It is generally the author’s obligation to provide the press with proof of such consent in the form of permissions grants, which often require the author to make a payment. The press’s work is in advising and assisting the author in obtaining those grants.
The AHPI grant did cover permissions fees, up to a set maximum amount per book. For many of the AHPI books, the allowed maximum was more than sufficient to cover the author’s costs. But its availability was important: one AHPI editor stated that, while the funding was much more than he ever needed, knowing it was there made dealing with the rights-holders much easier. “Whatever they were asking for, we knew we could pay it. So we could focus on pushing for full rights in both print and electronic formats, and if they were reluctant to give the electronic rights we could tell them we were quite willing to pay more for them, which the author might not have been willing or able to do otherwise.”
However, in the case of some of the Duke University Press books on modern and contemporary art, even the AHPI maximum was not nearly enough to cover the required permissions fees. For example, by far the highest set of permissions costs for an AHPI book was for Susan Cahan’s Mounting Frustration: The Art Museum in the Age of Black Power. Cahan’s work experience and connections at museums, foundations, and art schools paid huge dividends in terms of her ability to raise the money to cover well over $20,000 of permissions fees.
But most first-time authors of art history monographs do not have the institutional knowledge or connections to fundraise so effectively, and without AHPI support they would struggle to secure even modest amounts of funding. Thus the costs of permissions fees—especially if rights-holders insist on charging a lot more for including electronic rights along with print rights—continue to be a real inhibitor, deterring publishers from taking on the sorts of first books in art history that the AHPI program supported. As one AHPI editor remarked, “Through the AHPI program I was able to publish at least five books I would never have been able to publish otherwise.”
This editor’s testimonial suggests that the publication of first books in art history is not yet fully sustainable for university presses without reliable, significant sources of subvention. This is the problem that initially brought the four AHPI presses together: a conversation ten years ago about how the sources of subvention for art history monographs seemed to be drying up. University presses are resourceful when it comes to finding ways to publish a book they believe in. But they also are likely to steer away from publishing areas that are costly and time-consuming to publish in.
The AHPI funding allowed four presses that each had commitments to publishing in art history to continue publishing a substantial number of first books in this area. It is not yet clear what can take the place of the Mellon funding to continue enabling such publishing.
Attempts at centralizing the permission-seeking function
In making our proposal to the Mellon Foundation, the four AHPI presses thought we had a great idea: using the grant funds, we would work together to hire on a contract basis a permissions manager who would work for all the presses, paid book by book, on clearing permissions. This would give all the presses access to a shared employee with expertise in clearing image permissions and in ensuring that the images received for reproduction were of the necessary quality. And it would enable lessons learned on a book from one of the four presses to be transferred to books from the other three.
For a variety of reasons, this approach had mixed results in actual practice. Finding the right person and then training them proved much harder than the AHPI presses had imagined, partly because the role of freelance permissions manager is not a common one. Unlike such tasks as copyediting and proofreading, permissions clearing is not an established freelance line of business, though it is sometimes contracted out for a particular (and often particularly complex) book. The AHPI work, though relatively well paid, was not enough, and not steady enough, to create the equivalent of a full-time job in itself. But it was also too much to be done as “moonlighting” work by someone who also had another full-time job.
In the process of working on finding a permissions manager, it became clear that in some areas the four presses had very different standards and expectations—for example, with regard to what constituted fair use or what constituted an adequate image for reproduction in a book. And it also became clear, after much discussion, that we preferred to follow our own standards rather than come up with a common set of standards and expectations or simply allow a permissions manager to dictate what the standards and expectations should be. For what amounted to one or two books per year for each press, giving up our usual standards or working to come up with common standards did not seem feasible, and the presses were unsure whether there would be any longer-term payoff for coming together on these matters, given the differences among our publishing programs.
The AHPI presses were able to perceive the benefits of having a shared, expert permissions manager through the good work of one person who served as our permissions manager for two years, although even she did not have time to handle all the work we hoped she would. In addition to helping authors secure permissions, she began to collect case studies and envisioned developing a database of examples, ideas that would be worth pursuing. At the end of the project, several of the editors at the AHPI presses expressed considerable regret that we were unable to find an equally skilled replacement after she moved on to other work. Two of them separately expressed the wish that the Association of University Presses would provide expert permissions-clearing services for its member presses or create a set of standard expectations that could be shared among university presses and authors.
Conclusion
Rights-holders have become much more accustomed to being asked for electronic publishing rights, and also more educated about what such a grant of rights implies. The process of seeking and obtaining digital rights for the publication of images has become more efficient and effective, as it has become an increasingly standard practice. So one main aim of the AHPI program is steadily being accomplished.
But the same rights-holders are only starting to gain a clearer understanding about how to charge reasonable and acceptable fees for what they generally still see as adding an electronic-rights grant on top of a print-rights grant (and thus charging more money for it—even twice as much money, in some cases). They are not yet open to the idea that a book for which they have given a permissions grant for both print and electronic reproduction rights will reach roughly the same number of purchasers—in fact, probably fewer, given the steady decline in sales of university press publications to libraries—as a print-only publication would have reached ten years ago.
Thus the costs of such rights still tend to be prohibitive, discouraging both authors and publishers from publishing art history books in digital formats, which leaves the field lagging behind other fields where digital publication is now assumed. The AHPI program solved that problem for a few presses and for a set of fifty-four first-time authors over a period of nine years. But as the AHPI program comes to an end, presses that are not fully committed to digital publishing are likely to compromise on art history books in ways they would not need to compromise on other books, if they publish those art history books at all.
Publishing those books only in print is one form of compromise. Redacting images from the digital versions of the books is another form of compromise. And publishing the book with a more limited set of images than the number that would be optimal for the book’s readers is still another form.
According to the Art Libraries Society of North America, in its report “State of Academic Art Libraries, 2019” (footnotes removed),
"While other disciplines such as the natural and social sciences have seen significant transitions to digital publications as the preferred medium for publishing and research, print sources are still preferred by faculty in the humanities, and particularly in art history and the visual arts. This is particularly true for art and media research as rights clearance for digital publications is often an inhibition in producing electronic publications that are comparable to the image rich quality of print publications. In addition, the value of the single author monograph published by a scholarly press for tenure and promotion in art history keeps new and junior faculty producing scholarship using more traditional print formats. . . .
"Despite the shift towards collecting electronic and digital publications in research libraries, art, architecture, and design e-books are underrepresented in current vendor collections. According to Jennifer Yao, only about 2 percent of e-books offered by EBSCO, JSTOR, and ProQuest were in art, architecture, and design disciplines (with most titles coming from scholarly presses) demonstrating the limited availability of e-books for these subject areas. Yao concluded it was not possible to create a balanced and comprehensive collection using only e-books. As mentioned previously, one factor is the reported chilling effect that image reproduction rights issues is having on digital publications and keeping new scholarship out of this realm, particularly in areas of new scholarship with living creators."[3]
A couple of things seem clear from this report. Digital publication of art history titles (and related areas) is still lagging well behind digital publishing in other areas. And image reproduction rights issues seem to be the main culprit. On the other hand—in what is a parenthetical remark from an art library perspective, but front and center from a publishing perspective—it seems clear that university presses are leading the way in publishing art history books in digital formats, even though in many cases they struggle financially to accomplish their academic missions in general and struggle even more to afford the extra costs in both dollars and staff time that are needed for publishing image-heavy books.
The Art History Publication Initiative has played a significant role in moving the university press community forward in the area of digital art history publishing. Over the course of the project, many of the barriers have been lowered, if not yet completely eliminated. But it is unclear to what extent art history publishing will be able to move forward without the strong support for the payment of permissions fees that the AHPI grant was able to provide for one set of university presses, over one period of time, unless three things happen, each of which involves a different group within the universe of art history publication.
First, permissions grantors will need to be persuaded that fees for the digital reproduction of an image within the pages of a book, combined with print reproduction of that same image in that same book, should be no higher than fees for print reproduction alone. That will require further persuasion, education, and insistence on the part of the publishing community, perhaps with assistance from the academic art history community.
Second, in addition to doing that extra work on persuasion and education, university presses will need to become more assertive about finding ways to publish these books that do not involve expecting their authors to pay huge amounts in permissions fees. In the area of fair use, they will need to get comfortable with the sorts of practices advocated and supported by the College Art Association and its Code of Best Practices. And, where fair use is not involved, they should work to help authors locate wherever possible copies of the images they wish to reproduce in their books that do not require paying large fees to museums, archives, and others who try to make money by restricting access to a work that is in their collection but is also in the public domain. (Other players in the ecosystem, such as the College Art Association or graduate programs in art history, might also help here.)
Third, subvention funding in the area of art history and in the related fields that require reproduction of multiple images, often in color, will need to be strengthened. Quite simply, art history books are significantly more expensive to produce than other books, and they have significantly higher permissions costs. Those that are monographic (as opposed to “coffee-table books”) will almost never sell enough copies, and cannot be priced higher enough than other books, to bring in sufficient revenues to cover those costs. Thus they need subvention—and subvention not only of the publisher’s printing costs but also of the author’s permissions costs.
The world of digital rights and permissions has changed a good deal over the nine years of the AHPI project, as has the world of digital publishing as a whole. But the drying up of subvention funding in art history—which is the problem that brought the four university presses together to create the AHPI project—remains a problem that still awaits a sustainable solution.
With advice and assistance from Eleanor Goodman (Penn State University Press), Robert Lockhart (University of Pennsylvania Press), Ken Wissoker (Duke University Press), Beth Fuget, Lorri Hagman, and Mike Baccam (University of Washington Press) and Cali Buckley (former AHPI permissions manager, College Art Association).
We would also like to acknowledge the insightful comments from CAA’s Committee on Intellectual Property, in particular, from Celena Gonzalez, Anne Collins Goodyear, Carma Gorman, and Lauren van Haaften-Schick.
[1] Hilary Ballon and Mariët Westermann, Art History and Its Publications in the Electronic Age: Report on a Study Funded by the Andrew W. Mellon Foundation. Houston: Rice University Press, 2006. (http://cnx.org/content/m13961/1.2/).