French Visual Studies, or the Authorized Scholarship
I would like to describe briefly the very unhappy situation of the visual studies in the French legal context. This could be characterized by two major points: 1) the absence of any kind of fair use, 2) the absence of quotation right for still images. In 2005, when the journal La Revue de l'Art opened its online version, it was published without its iconography, to avoid the payment of new reproduction fees (you may notice that, in the example shown on the screen, the illustrations are engravings from the 19th century, that it to say pictures in the public domain). Without fair use or quotation right, there is in fact no public domain for still images. As a picture is an existing thing conserved by a collection, if you want to publish it, you have to ask for.
That's why we can describe the common law of visual history in France as "authorized scholarship". The best way to publish his research is in a catalog of some great exhibition by the musée d'Orsay or the musée du Louvre, which hold the copyright of the works they are showing. In all other cases, the researcher may verify that the possibility of any critical evaluation is strictly linked to the quotation right. For a reader published last year, I wanted to describe the famous case of the O. J. Simpson cover doctored by the Time in 1994. That meant that the publisher had to obtain the permission of the magazine. As we can easely understand, Time was not very happy to see this old story published again, and refused to give its copyright.
It is not impossible to publish without an illustration. But the forced absence of an image can also force other decisions: to modify the text, or to cut the part concerned. I have to say that this possibility was examined with the publisher. If this is not a big issue for a normal illustrated publication, it has a very different meaning for an academic contribution. There, the image is not only the subject of the comment: it is also the evidence of its scientific value. Would it be possible to imagine a scholarly paper without its footnotes? A demonstration in physics or in mathematics without its equations? Why would scholars allow in the visual domain what would not be acceptable in other fields?
This is an obvious example of the limitations of "authorized scholarship". But there are many other ways to influence the content. For the same reader, I was asked to discuss the case of the "Kiss" by Robert Doisneau, first published by Life in 1950. We now know that this photograph is not a snapshot, but a prepared scene with actors. So it was interesting to show the relation between Doisneau's advertising activity and this kind of faked "reportage". But the price of reproduction fees for such a famous image is very high. What happened in this case is that the sum is negotiated between the publisher and the rights holders. And of course, within this discussion, it seems normal that the rights holders were asked to read the text. This was the way in which I was put in relation with Doisneau's daughter, who had some remarks to make about my paper. Many of these were interesting, but the fact is that the final version of my article doesn't present anymore the parallel between advertising and reportage with the same brutality. This attenuation was an implicit condition of the publication of the picture. This is a very common example of publishing process in the visual domain.
In June 2006, a new law called "DADVSI" was voted to regulate the use of digital content – especially recorded music – and to increase the protection of copyright holders. Under the pressure of industrial lobbies, the ministry of Education placed any copyrighted material under contracts that specified their use for teaching or research like for commercial publication. That meant a precise declaration of the contents, limitations of their number, or the prohibition for teachers or students keeping a copy of this material on their own hard disk. The law was in fact never applied. In a recent report of the ministry, it was officially recognized that these contracts are impossible to be followed. What they have produce is a situation of wild experimentation, where anybody invents his or her own rules. Some online review decided, since their publication was free, they wouldn’t pay any fees at all. In the case of my reader, the publisher, with the help of a lawyer, decided to draw up a new legal argumentation that give him the right to publish a non-licensed iconography.
But this situation unfortunately has another consequence. Many scholars are forced to avoid copyrighted material as their research subject – meaning they simply jump over the most part of the 20th century. The new subjects I see now are typically 19th century engravings or amateur photography, on one hand – or copyleft visual content from Flickr or Youtube on the other. I must admit that it wouldn't be fair to recommend to study Cartier-Bresson's or Nan Goldin's work under today's legal dispositions – or to risk publishing it without illustrations. The major disadvantage of "authorized scholarship" is this kind of black hole: you will never see the research that was never done. I'm afraid we can already observe how visual studies is split into two pieces: the art of the 20th century treated by national institutions in large exhibitions and beautiful catalogs, the rest left for common research and academic publications.
The recent project to develop the study of art history within high schools is a reason to hope that today's situation is only temporary. But France has to decide which visual research it wants. An independant and critical one can not be obtained under any circumstances.
Communication au colloque "Scholarly Publishing and the Issues of Cultural Heritage, Fair Use, reproduction fees and Copyrights", Max Planck Institute for the History of Science, Berlin, 11 janvier 2008.