Robert Rauschenberg, “Yellow Ranch (Rancho Amarillo)/Roci Cuba” (1988), enamel and acrylic on galvanized steel (all images courtesy the Robert Rauschenberg Foundation)
In the age of smartphone cameras and social media, it seems easier than ever for members of the public to freely share pictures of contemporary art. The copyright police won’t come after you for Instagramming your trip to MoMA, right? But securing permission to reproduce copyrighted images is still a logistical and financial nightmare for many teachers, scholars, reporters, and critics.
To adapt to the digital-driven wild west of photo sharing, the Robert Rauschenberg Foundation has eased its image-use restrictions. The new policy strongly endorses fair use and attempts to make images of Rauschenberg’s work that are owned by the foundation more widely available, free of charge. (Understanding fair use can itself be a headache; here’s a handy guide.)
The foundation’s stated aim is to aid professors, writers, and scholars with accurate dissemination and analysis of the artist’s work. The new policy gets rid of prohibitive royalty fees, permissions, and licensing agreements for those reproducing images of Rauschenberg’s work for “noncommercial, scholarly, and/or transformative purposes,” per a statement.
Robert Rauschenberg, “Sue and Janet – Outer Island, CT” (1949), gelatin silver print
“Traditional notions of copyright and attempts to control images have proven incompatible with the nature of the digital age,” said Christy MacLear, CEO of the Rauschenberg Foundation. “Given all of the challenges that have emerged — converting print to digital, promoting scholarly use, and incentivizing museums to use Rauschenberg images — we realized that the greatest impact would come through transferring control to scholars and museums.”
The foundation hopes to inspire other artists’ estates to relax their image-use restrictions in the name of scholarship. “The system has created barriers for the wrong people,” MacLear told the New York Times. “There’s a lot of fear that has grown up around the use of images for things that we should all encourage, like education and scholarship and museum work.” This fear often leads to the dissemination of low-quality images and inaccurate information.
What does the new policy mean in practical terms? Basically, any images of Rauschenberg’s art for which the the foundation owns the copyright can be reproduced freely in a variety of contexts, from social media to study guides, without express permission, so long as they qualify for fair use and are not used commercially. The foundation is also planning to grant free licensing agreements to museums and educational institutions in cases that don’t fall squarely under fair use, like promotional materials and advertisements. The organization estimates it could lose roughly half of its image-rights income, which averages about $100,000 a year, on the new endeavor.
But as some critics have argued, the move is not just for the benefit of academics and art lovers who want easier access to images — it also helps the foundation promote itself and Rauschenberg’s work. In a blog post, art attorney (and Hyperallergic contributor) Sergio Munoz Sarimiento called it “a promotional gimmick.” Why? The images owned by the Rauschenberg Foundation have always been eligible for fair use; in a way, all the organization is doing with this “new policy” is announcing that it won’t immediately go after anyone seeking to employ them in that way — basically making it less scary for art professionals to try to exercise their right to fair use. Still, publicizing the importance of fair use is a good example to set in a climate where many artists’ estates and foundations often hold images hostage.