The thumbnails (small, low-resolution images) are probably a fair use; using them to promote an exhibit is transformative—the art was not originally made or imaged to promote an exhibit. They were originally made to be appreciated and viewed as artwork. Thumbnails, or even larger images that are still small, are not high-quality enough to be used as artwork, but they can serve as basic illustrations to promote an exhibit that includes high-quality images. Since thumbnails cannot substitute for original artwork or high-quality images, they are unlikely to harm the copyright owner's ability to make money. Two appellate cases have held that search engines that use thumbnails to illustrate search results were fair use.[1] Your use of thumbnails in this case is similar to these cases.
The ARL takes an aggressive position on a library's right to digitize its special collections and archives in its Code of Best Practices, which is included in Appendix M.
Handling Your Copyrights
We've covered what a library needs to do when reproducing and distributing others' copyrighted works, but what should a library do with copyrights that it owns? Almost all libraries (or their parent institutions) own copyrights. When library employees create works as part of their duties, the work-for-hire doctrine says that the employer owns the copyright. Employee-created works, such as guides, bibliographies, and the like are owned by the employer absent a policy to the contrary. Although it is not necessary, authors publishing with the library can assign their copyrights to the library. When people donate their personal papers to archives, they can also sign a contract to donate the copyrights over the papers so the archives handle any permissions requests. One way or another, your library will own copyrights.
- ↑ Perfect 10, Inc., v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003).
