International Association of Libraries and Museums of the Performing Arts

Société Internationale des Bibliothèques et des Musées des Arts du Spectacle

A report on the present status of usage fees charged for the worldwide publication of illustrative matter from the collections of the research libraries of the New York Public Library

Richard M. Buck (Assistant to the Executive Director of the New York Public Library for the Performing Arts)

Documentation des Arts du Spectacle dans une Société en Mutation / Documentation of Performing Arts in a Changing Society

Société Internationale des Bibliothèques et des Musées des Arts du Spectacle /
International Association of Libraries and Museums of the Performing Arts
19ème Congrès International / 19th International Congress
Lisbon 7-11 September 1992. Lisboa : 1994, pp. 46-48

At the 17th International Congress of SIBMAS held in Mannheim in 1990, I presented a paper that discussed the usage fees charged for the commercial publication of flat images from the research collections of the New York Public Library, and by way of illustration, some of the major research libraries in the United States. At that time I reported that the administration of the New York Public Library was in the midst of a study of the fee schedule for flat images and was taking a new look at the problem of the many requests for the commercial use of moving images for use in documentary film and video. That paper evoked many provocative and thoughful comments from the Mannheim audience. It was published in 1990 as part of the proceedings of the 17th SIBMAS Congress by the Städtisches Reß-Museum of Mannheim.

At the 18th SIBMAS Congress in Stockholm in 1990 I presented a paper on performance images. In it I mentioned that the fee schedule for illustrative matter was still under discussion but that I hoped to be able to report on the New York Public Library fee structure for the use of photographic images and film or tape footage at the SIBMAS Congress in Lisbon. We are now here in Lisbon and by some miracle I do have a report on the new fee structure. It has taken many meetings and seemingly endless drafts to come as far as we have come; upon implementation, almost immediately, we realized that despite more than four years of analysis, we had not gotten everything right.

I have distributed two sheets of paper. The first is a notice that instructs the researcher how to complete the second. I discovered long ago that no matter how simply we at the Library felt that the application could be completed, that for many, it really was not easy at all. With these written instructions I hope that completion of the application will cause the user as little confusion as possible. The second sheet is the really significant one and the one I wish to concentrate upon today.

The front of the sheet is the actual application. We ask that it be completed by any researcher who has determined that the research being done may result in the use of some material for publication purposes, whether the publication will be commercial or not. The application is not related to any forms that the user must complete to have photographic copies of the material made. It is only for the purpose of requesting the use of the copied images for publication in a new source.

The administrative committee that discussed the revision of the fee schedule spent many hours discussing the definition of "commercial" publication. We firmly agreed that whatever we decided was not commercial publication would be granted a waiver of the fee, but the definition kept eluding us. Clearly any scholarly journal and many university press publications are not commercial, as many documentary films and videos are not. Finally, we agreed that, if in the best judgement of the curatorial representative examining the application, the publisher would not be expected to realize any profit from the publication in question, the use would be non-commercial. Sometimes this will be a best guess situation, and we did not mean that a regular trade-book publisher should be able to get away with the argument that a particular publication would be a loss-leader in its catalogue and is being printed for prestige and not for profit. I think that most of us will assume that any title published by a trade publ
isher is, at least hopefully, published to make money.

Another difficult issue in our discussions was the question of copyright. You will notice that on the application we have the user sign a statement that the Library is held harmless of any copyright infringement resulting from the use of the material. In many cases in which we agree to allow the researcher, author or publisher to publish an image that has been copied from our collections, we do not even know if any copyright exists. We know that many materials from the 18th, 19th and early 20th centuries are in public domain, but there are many 20th century photographs that carry no identification of any photographer.

Although we caution the potential user to make every effort to identify any possible copyright holder, this is often not possible. The signing of the application is a way for us to turn the responsibility for copyright identification to the user of the image. Many authors and publishers still are under the impression that we are giving permission to use for publication, but we are stating on the application as clearly as possible that this is not the case.


On the back of the application is the result of the many months of discussions; the Fee Statement and Schedule. The fee statement defines what we mean by "publish". It clearly states that the usage fee is in addition to any fees charged by the Library's Copy Service. It indicates that these fees are for cost recovery, implying that the Library is not imposing fees to make a profit from authors or publishers. We know, surely, that most authors and publishers are in the same sort of strained financial conditions as are libraries.

In the delineation of the fee schedule we come to the subject of this 19th SIBMAS Congress, the Documentation of the Performing Arts in A Changing Society. It was decided early on in our discussions that for single images the fees would be constant for all media. That is if a photograph or a photograph of a print, drawing, engraving, sheet music cover, etc., were to be used in a book, periodical, film or video, the fees would be the same. It was only for moving images that we created an entirely different schedule.

Once the single image/all media decision was made, we had to determine a way in which users worldwide could make use of our materials with the least difficulty to them and to us. As you can see, we determined a United States usage, a world-wide English language usage, and a worldwide all-language usage. Within these three possibilities we then determined separate amounts for 1st use, 2nd use, and full use. As a separate item, we listed special types of one-time uses for particular requests.

Already, we have discovered that all the months of discussion did not reveal all of the possible requests. For example, we did not think about the possibility of world use in some language other than English. Neither did we provide for world use in English plus one or two other languages, or world use in two or three languages other than English. Nor did we provide for something called "North American rights in English in all formats". I have had the latter request at least twice, and some form of the others at least once. My conclusion is that there was a certain amount of provincialism in our discussions and that we were obviously basically thinking "English".
My feeling is that under the current schedule that lumps all languages other than English into a category of "World Usage, all languages", we are penalizing those authors and publishers who are publishing on the continent of Europe and wish to use our materials possibly in the same limited way that US publishers wish to in English. The society is changing faster than our thinking. In today's world, these requests can easily come to us for uses that may never be translated into English at all. I am inclined to suggest a revision that adds a fourth category, something on the order of "Foreign Usage, one or two languages" and charging either the same as "U.S. Usage" or "World usage, English Language". I would like your comments on this, or anything else about the fee schedule.

You will note the use of video and film clips and audio duplicating are treated in a different way from flat images. At The New York Public Library for the Performing Arts (our new name), there are many requests for video and filmclips from items in the Dance Collection, and some from the Theatre on Film and Tape Collection. The Rodgers Hammerstein Archives of Recorded Sound receives many requests for audio clips and does considerable audio duplicating for both commercial and non-commercial purposes.
The five points listed under item on the fee schedule are the result of considerable consultation with the staff members of these units. Their experience in estimating staff costs for time spent doing research and helping obtain permissions was all taken into account in deciding on these regulations. So far, I have heard no complaints from these units in applying them. There were some staff members who at first objected to the $250 per minute fee for a one minute clip, but after consulting other archives and figuring staff costs involved in searching rights and preparing material, the fee seemed reasonable for most staff members. The statement that nonprofit fees are negotiable allows the individual curators to decide on a smaller fee for these users that they determine to be non-profit. At the same time, it allows the Library to realize a proper fee from the television networks and other clearly for-profit users.

This new fee schedule and its accompanying application has been in place and used for about two months as of this writing. Except for those types of requests that I mentioned that are not covered by our categories of usage, there seems to be little problem with the completion of the application or the payment of the fees as listed. In the process, we raised the basic fee for a single usage from $25.00 to $35.00. I have heard no complaints about this. Previously our only other option was a second usage of $10.00. As I reported four years ago, more and more publishers were dissatisfied with only the two from which to chose. At least for English-language publishers, I believe what we now have in place is much more practical. It surely causes us much less paperwork, and I am sure it will ultimately be more cost-effective. We always knew that there were numbers of publishers who did not bother to request second usage for another format, but since we were unable to monitor the situation we never really knew. From the number that are now asking for full U.S. usage or world usage immediately, I am sure that we are now catching them before they get away.

So here we are, a better method, but not perfected. Some will not like the charges; many authors will continue to say that they must pay for their own illustrations and such fees will reduce the number used. This will always be the case, unless we were to charge no fees. And without a subsidy, no private research library can afford to provide this sort of service free.

19th Congress

URL: http://www.sibmas.org/congresses/sibmas92/lisb10.htm