In today’s litigious ownership society, there are more visual arts permissions hurdles than ever before for both publishing and artistic expression. Publishers or individual authors are confronted with astronomical fees for copyright permissions and use fees for photo reproductions provided by museums or image providers. There are also enormous costs in time and in administering the photo research process. Living artists who draw on popular culture may face lawsuits from corporations or from other artists. Artists who strive to have their works published and documented may be excluded from publications because their rights managers have requested huge sums from a publisher or author. And, due to diminishing sales and shrinking print runs, publishers prefer to include images of works with permissions that can be easily secured. Intellectual discourse and artistic practice can be severely handicapped by these factors, and could eventually encompass little more than the traditional set of renowned cultural icons.

If we had ever thought intellectual property issues were solely the concern of lawyers and corporations, we realize now that in the world of new media visual art vies for its growth and very existence among copyright-wielding (and copyright-asserting) giants. Intellectual property laws have significantly impacted, and will continue to impact, our cultural life in terms of creative expression and intellectual inquiry. Yet few of us have the time to wade through legal tracts and figure out how these laws might affect our own work as academics, authors, publishers, and artists. Getting a handle on the issues at stake is essential, not just for specialists, but for anyone working with or creating visual art.

Authored by University of Chicago Press’s executive editor for art, architecture, and classical studies, Susan Bielstein’s Permissions: A Survival Guide humorously and intelligently outlines the critical issues facing art book publishing now. Survival is the crucial word here when scholarly book publishing is a wilting industry despite a surplus of hefty, full-color art books available for unbelievably low prices. In thirteen chapters containing summaries of major court cases and their ramifications, countless hilarious anecdotes illustrative of copyright conundrums, footnotes, sample letters, useful sidebars, a sample image permissions log, a list of image sources, and suggested further reading, this book deftly interweaves explanations of intellectual property issues with real-life experiences in academic publishing.

Beginning chapters provide an overview of the contemporary publishing climate, where library budgets are dwindling, educational resources are sparse, and image permissions fees can be prohibitively expensive. Four chapters cover the main copyright issues in art publishing: the concept of copyright itself (chapter 4); the public domain, now diminished and threatened by our ownership culture (chapter 5); the role of museums as gatekeepers to art images (chapter 6); and the U.S. doctrine of fair use in education, artistic production, publishing, de minimus use, and “orphan works” (chapter 9). In these chapters, Bielstein spells out the bewildering consequences of important copyright legislation such as the 1976 Copyright Act, and the Sonny Bono Copyright Extension Act and Digital Millennium Copyright Act (DMCA) (both 1998). These overlapping and often contradictory laws make it difficult even to determine the copyright status of works, let alone secure permission for publication.

Bielstein also helpfully summarizes numerous pivotal court decisions affecting the visual arts, notably The Bridgeman Art Library, Ltd. v. Corel Corp. , 1998, a New York lower court (9th Circuit) decision which deemed “slavish copies” of two-dimensional artworks inherently uncopyrightable due to the lack of the requisite element of originality. Not surprisingly, no museum or image provider in the U.S. or abroad considers this case definitive, though none has sought to test it. Meanwhile, publishers wary of litigation continue to pay exorbitant fees to license photo reproductions of two-dimensional artworks.

Publishers are not the only party suffering in this climate. Artists are also limited, not only in the ways they may produce works, but also in the ways they profit from those works. For example, in the shocking decision in Rogers v. Koons, 1992, Jeff Koons’s sculpture parody of a greeting card image was not deemed fair use because it compromised the market for copies of the original work. This case illustrates the perils artists now face when their creative work hinges upon quoting from mass culture and existing artworks— a practice in the visual arts for generations. Though fair use is determined on a case-by-case basis (depending on the jurisdiction and the judge presiding), court decisions such as this may encourage similar lawsuits. In another case, Kelly v. Arriba Soft Corp. , 2003, the courts ruled that Arriba Soft could display thumbnail images of Leslie Kelly’s work in their search results because they did not substitute for nor diminish Kelly’s ability to capitalize on the original images.

Perhaps as equally informative as Bielstein’s text are the captions to the thirty-five figures throughout the book, which expose the fascinating and byzantine processes, costs, and complexities of clearing image permissions for publication. A case in point is figure 1, which would have been Francis Bacon’s Study after Velázquez’s Portrait of Pope Innocent X (1953) had the Bacon estate not insisted upon approving the text (!) before granting permission. To emphasize the point, Bielstein leaves a blank space where the image would have gone. Other captions demonstrate the dizzying number of parties who may own or assert rights to the image: the artist (or artists) who made the original work, the museum that houses the work, the person who took the photograph of the work, the image provider that owns the photograph, and so on. Clearing permissions is also an investment in time. Bielstein chronicles the difficulties in tracing the rights-holder of an orphan work (i.e., a work the creator of which is either undetermined or untraceable) in figure 25.

Having laid out this maze, Bielstein then provides actual tips and guidelines in chapters 10 and 13. She covers everything from image sources and artists’ rights to technical details regarding image size, transparencies, and digital files. She also offers honest advice (e.g., “Keep it brief,” 115) for drafting letters seeking permissions from artists and other copyright holders. “You’d be amazed how sensitive even the very bad boys of art can be,” she writes (113).

The Guide also elucidates some of the most pressing and complex issues facing the visual arts today, including photographs of architecture, artists’ moral rights (an especially important consideration in the context of European copyright legislation), photographs of events and performances, privacy issues, and orphan works. Bielstein examines heated debates in our community such as the “shrinking” public domain and highlights the contributions of others allied to her cause. For instance, Ken Hamma of the Getty Research Institute proposes that museums would better serve their missions by making high-resolution images of public domain holdings publicly accessible, even for commercial use, rather than maintaining strict controls over these images. In a similar vein, Bielstein praises Lawrence Lessig’s Creative Commons movement, which offers a flexible alternative to traditional copyright by allowing owners of copyrights to pre-assign permission uses and fees and publish these specific terms online (147).

Although the anecdotes throughout her book bring to life otherwise dry (for many of us in the arts, I suspect) intellectual property issues, at times the witty storytelling leaves the actual how-to’s rather difficult to decipher. For example, in a sidebar about photographing performances and events, Bielstein notes that one U.S. law requires “the consent of performers” in order to publish the photograph, while another section of U.S. copyright law states that only works “fixed in a tangible medium” can be copyrighted (71). At the end of this one-page tale, it remains unclear whether one should seek permissions from performers or not in photographs of performances and events. Similarly, chapter 8’s riotous account of an expensive mistake in commissioning a photograph of an Antonello da Messina leaves the reader few guidelines for handling a similar situation.

Though the focus is on permissions for print publications, a discussion of permissions for electronic publications would have been useful. While Bielstein touches on digital media throughout, the book offers no guidelines for securing electronic permissions. Online publishing is rapidly dominating the industry, where an increasing number of publications are “born digital” or will eventually be digitized. Furthermore, many academic journals are already published in print and also online in JSTOR or other online databases, both commercial and (like JSTOR) nonprofit. Digital technology has unleashed a host of anxieties for copyright holders because duplication is easy, cheap, and the results are, more often than not, identical to the original digital file. Image providers frequently charge fees with term limits, which means that in addition to up-front licensing costs there are ongoing costs to keep the image in the online publication. Copyright holders also want to know if the e-book or online resource is subscription-only, if it is password-protected, and whether the image is high-resolution or low-resolution. Moreover, while readers and libraries generally prefer open-access models for online publications, artists, museums, image providers, and publishers usually do not. The future of online art publishing rests almost entirely on permissions, especially since most online resources are accessible world-wide, and international copyright law is even more tangled when it comes to the Web.

In the end, image permissions are murky and complicated. Very often it is not copyright law limiting our publications but rather image-licensing agreements (i.e., contracts, which can trump copyright considerations). Creative freedom and cultural discourse are increasingly hampered by copyright issues and cultural habits: “the ritual of asking—and granting and withholding—permission has become so deeply embedded in our ‘cyber-psyche’” (9). Bielstein’s perspectives are understandably informed by her experience as a nonprofit university press editor, and Bielstein acknowledges that intellectual property matters are rarely black and white—publishers are copyright holders too and vigorously monitor their content, and museums are also publishers grappling with these very same permissions headaches. For these reasons and more, I highly recommend this book to anyone working with visual material. The Guide offers much-needed, valuable insight on a critical but convoluted and vexed subject. It is concise, engaging, and digestible, even more so than a similarly conceived book, Dear Images: Art, Copyright and Culture, edited by Daniel McClean and Karsten Schubert (London: Ridinghouse, 2002). However, it is not the no-frills handbook the title might suggest, and there is still need for a kind of “Permissions for Dummies” manual that gives clearcut, step-by-step instructions and guidelines for securing art image permissions for publication.

These community-wide debates over the state of scholarly art publishing are also eloquently argued by other experts, including John Nicoll, managing director of Frances Lincoln publishers and former managing director of Yale University Press, London, in “Why Art Publishing is in Crisis” (Apollo [May 2005]), and Christopher Lyon, executive editor of Prestel, New York, in “The Art Book’s Last Stand?” (Art in America [September 2006]). Happily, these discussions have borne fruit as major art institutions have begun to take actions that will, one hopes, boost scholarly research and publishing. The December 2006 issue of The Art Newspaper announced that the Victoria and Albert Museum would to scrap image-reproduction fees for scholarly publications. Also in 2006, the Metropolitan Museum of Art announced plans to waive image-reproduction fees for scholarly publications through a partnership with ARTstor. As evidenced by these recent developments, the more informed we become, the better we may work collectively to ensure that scholarly art publishing will thrive.