THIS CHAPTER PROVIDES a broad overview of certain aspects of US copyright law focusing on three key copyright concepts—the exclusive rights of a copyright owner, the duration rules, and fair use. It briefly addresses Creative Commons licenses and open access as two important areas to be aware of in museum work. We encourage readers to consider this chapter along with CHAPTER 7D, “Rights and Reproductions.” Selected resources are provided at the end of this chapter for further exploration. This chapter is intended as information to assist museum professionals in the performance of their duties; it is not intended as a substitute for legal advice. Specific intellectual property issues may require the assistance of counsel.
Copyright is only one aspect of intellectual property, and it is helpful to have a sense of the different areas of law that are casually implied by the phrase. Intellectual property generally refers to the separate and distinct protection regimes of copyright, trademark, patent, and trade secret. The World Intellectual Property Organization1 (WIPO) provides some helpful definitions:
Copyright—“Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.”
Trademark—“A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when artisans used to put their signature or ‘mark’ on their products.”
Patent—“A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how—or whether—the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.”
Trade secret— “Trade secret is another form of intellectual property. It tends to affect museums infrequently. Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets.”
Why are intellectual property issues especially significant for museums today? Intellectual property rights—particularly copyright and trademark—have always been relevant for museums as they build and preserve collections, conduct research, interpret collections for the public, organize exhibitions, and provide educational programs and services. Museums reproduce works created by others for many mission-related reasons. They create original works, own collections in trust for the public (e.g., images, objects, specimens, documents, databases), sell products, and license their names for reproductions of objects and images. As educational institutions, museums in the United States and a few other countries are entitled to make fair use of the copyrighted work of others as discussed in greater detail below.
Under US copyright law, a work is protected (i.e., it is “under copyright”), or it is in the public domain—meaning that it is freely available for use by others because there is no copyright owner of the work. Some works are in the public domain because Congress excluded certain categories for public policy reasons, specifically “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”2 Works of the US government are not eligible for copyright. A work of the US government is one prepared by an officer or employee of the government in the scope of their employment, but the government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Note that the federal government may commission works that are, in turn, eligible for copyright. Typically, states retain copyright of the work of their employees unless there is a state law to the contrary. Other works enter the public domain because the copyright lapsed for failure to comply with copyright formalities or when the copyright expires through the passage of time.
The Copyright Law of the United States, as codified in Title 17 of the US Code, states that copyright protection subsists in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.”3 These three elements—originality, authorship, fixation—are threshold requirements for copyrightability. They lead to additional questions, such as is the work original or a derivative? Is there an author? Is the work fixed in a tangible medium? If the work was created in the course of employment, it is likely a work made for hire, in which case the employer is the creator and therefore the copyright owner.
Assuming the work is eligible for protection (that it is original and fixed in a tangible medium of expression), the authors (or other copyright owners to whom rights may have been assigned or transferred) are granted exclusive rights to their creative works (with the exception of limitations such as fair use, described in section 107 of Title 17). Note that the standard for originality is not high. Copyright is often referred to as a bundle of rights because one, some, or all of the rights that make up a given copyright may be owned, sold, licensed, transferred, assigned, or some combination thereof. Copyright infringe ment may be subject to significant civil or criminal penalties. The exclusive rights granted by copyright are the right to reproduce, adapt, distribute, publicly perform, and publicly display the works. These rights can be understood as follows.
This is the right to make copies of a work. It generally prevents one who is not the copyright owner from making exact or substantially similar copies without permission. Copies are defined in the act as “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonore-cord, in which the work is first fixed.”4
This is the right to prepare derivative works based on the original copyrighted work by transforming the original or altering it in some manner. This can take the form of a reproduction of, for example, a collection object in a different medium for sale in the museum shop, a translation, a musical arrangement, dramatization, or a video. Derivative works are challenging because it must be determined whether there are sufficient original elements for the work to garner its own copyright in the first place; even if there are, the copyright extends to only the added elements.
The distribution right gives the copyright owner the right to control the initial public distribution of copies of the work by sale, rental, lease, or loan. The owner can determine the timing of the distribution, the number of copies of the work by sale, rent, lease, or loan, the place of distribution, and the like.
The distribution right is subject to an important limitation, known as the first sale doctrine. Under the first sale doctrine, one who owns a copy of a protected work is entitled to sell or otherwise dispose of their possession of the copy without the authority of the copyright owner. This means that although a museum may own a physical object in its collection, the museum may not hold copyrights to or associated with that object. Of course, this will depend on whether there are copyrights at all. For example, there are no copyrights intrinsically associated with natural history materials (e.g., rocks or plants), but there may be copyrights in artwork or other human-made collection objects. Although there are no copyrights intrinsic in a rock or plant specimen, a photograph or other depiction of the object may be eligible for copyright. This concept can be confusing, and the distinction between possible copyright of a physical object and possible copyright to an image of that object is an important notion for registrars. It is important when considering when and under what conditions reproductions may be made and is a vital consideration in the acquisition of collection objects. Registrars should be aware of possible copyrights and discuss those matters with donors or sellers, documenting the copyrights in the acquisition process. As a practical matter, many museums choose not to assert possible copyrights of images (particularly digital reproductions made available online for educational purposes) of collection objects that are in the public domain. These ideas are explained further in “Recommendations for Standardized International Rights Statements,”5 a white paper for the Rightsstatements.org project noted in the Resources section.
This is the right to control the listening to or viewing of a copyrighted work. Under the copyright act, three types of public performances can be distinguished: (i) a performance at a place open to the public; (ii) a performance by transmission to a place open to the public; and (iii) a performance to an audience that may be separated in time, place, or both. Many activities taking place in the public spaces of museums are considered to be public performances that require the copyright holder’s permission. For example, music in connection with an opening or a background in the restaurant, or an exhibition transmitted for viewing by persons in geographically dispersed locations or at different times, could constitute a public performance. There are performing rights organizations such as the American Society for Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) that administer licenses for music performances. For museums that collect motion picture, broadcast, or recorded sounds such as music, lectures, film, or other performative material there are additional considerations beyond the scope of the basic copyright framework presented in this chapter.
The copyright holder has the exclusive right to display the copyrighted subject matter (except sound recordings). The right of public display applies to the exhibition of original works of art and to their reproduction because copyright includes any material object in which the work is fixed. When a museum acquires a work, but not the copyright (generally the case in museum practice), the copyright act places an important limitation on that exclusive right, allowing the owner of a copy of a copyrighted work to “display that copyright publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”6 This public display right extends only to the immediate physical surroundings of the work. Without express authorization, the museum might not be permitted to project images of the work into other galleries, or transmit the copy of the work over computer networks for viewing at multiple locations—unless that use is a fair use, discussed later in this chapter.
Copyright subsists from the moment of creation until expiration of the statutory duration, regardless of whether the work is hidden away or is so popular that it is used, adapted, and reproduced on a daily basis. Congress enacted the first US copyright legislation in 1790. Since then, there have been four general revisions and many amendments of the copyright law. For much of the twentieth century, the Copyright Act of 1909 provided the basic structure for protecting creative expression in the United States. Congress overhauled the copyright law when it enacted the Copyright Act of 1976, which took effect on January 1, 1978. However, the 1909 act rules continued to apply generally to works that were published or registered before January 1, 1978. Finally, since 1976, there have been several significant amendments to the copyright law, including the Digital Millennium Copyright Act of 1998. In 1998, Congress passed the Copyright Term Extension Act, which added twenty years to the previous life plus fifty duration of copyright. The matter of orphan works (works for which the copyright owner cannot be determined or located following a diligent search), is one of great concern for museums in light of the scope and scale of museum holdings. The museum community actively engaged in shaping legislation proposed over the years to Congress. As of this writing, no new law has been enacted and the copyright act has not been further amended, although the European Union passed a directive in 2012 regarding certain aspects of orphan works in its jurisdiction (Directive 2012/28/EU).7
For museums, as stewards of works produced under both laws, it is important to have a working knowledge of the principles and rules of both the 1909 and 1976 acts. The publication rules were strict under the 1909 act; it is especially important regarding pre-1978 works to understand the legal distinction between published and unpublished works. The Copyright Act defines publication as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease, or lending…. A public performance or display of a work does not of itself constitute publication.” Publication is also a legal term of art that is not always easy to understand intuitively.
Cornell University Library maintains an invaluable chart for determining whether a work is in the public domain. It is helpful for many situations and is titled, “Copyright Term and the Public Domain in the United States” by Peter Hirtle.8
For works created on or after January 1, 1978, copyright protection subsists from the creation of the work and lasts for the life of the author plus 70 years (previously it was for 50 years). In general, protection lasts until the end of the calendar year 70 years after the author’s death. Copyrights in works of joint authorship (other than works made for hire) continue until the end of the year of the seventi eth anniversary of the last surviving author’s death. Anonymous or pseudonymous works (if the name of the author is not revealed) and works made for hire are protected for 95 years (previously 75 years) from the date of first publication, or 120 years (previously 100 years) from the date of creation, whichever is shorter. Nothing in the 1998 term extension law restores copyright protection for any work that entered the public domain prior to October 27, 1998, the effective date of the legislation.
Museums are custodians of a vast body of unpublished works such as diaries, letters, and manuscripts, many of which date to the eighteenth or nineteenth century. Many museum professionals are surprised to learn that these works may still be protected under federal copyright law. For works created before January 1, 1978, but never published or registered as unpublished works with the Copyright Office before that date, the same duration rules discussed apply, with two important differences. First, the earliest date that copyright could expire for works in this category was December 31, 2002 (if the work remained unpublished). Second, to encourage publication, the copyright term for such works was extended through December 31, 2047 (if the work was published before December 31, 2002).
The rules for determining the copyright term for works created and published before January 1, 1978, are much different and even more complex. Museums may need to be familiar with the old rules, which may remain applicable to many works in museum collections. The general rule for works created under the 1909 Copyright Act was that copyright protection began on the actual date of publication (or the date of registration for unpublished works) and lasted for twenty-eight years, subject to a renewal term of twenty-eight years, for a total potential term of fifty-six years.
To apply these rules to works created or published before January 1, 1978, a museum should be aware of three fundamental differences between the old and current copyright laws. First, under the 1909 act, the copyright term was measured from the publication or registration of the work and not from the creation of the work. Second, copyright lasted for a definite number of years rather than the indefinite period measured by the life of the author and a fixed number of years. Third, the copyright term included a mandatory renewal feature. Failure to comply with any of the formalities of publication associated with notice or renewal could cause the work to enter the public domain.
In theory, the renewal feature of the old copyright law was a mechanism to give authors and artists a chance to regain their copyrights after twenty-eight years. In practice, renewal often caused unwary copyright owners to lose copyrights because of failure to renew. To maintain copyright protection during the second, or renewal, term, the copyright owner had to file a renewal application with the Copyright Office during the twenty-eighth year of the initial term. Failure to comply in a timely manner meant that the work entered the public domain.
In 1976, Congress abolished the two-term system. However, it retained the renewal feature for works copyrighted before 1978 and still in their initial terms before January 1, 1978. If the owner complied in a timely manner with the renewal requirements, there were substantial benefits. The copyright owner could obtain a renewal term of forty-seven years (bringing to seventy-five years the total possible period of protection for renewed copyrights). But if the copyright owner failed to comply with the renewal requirements (even if the owner was simply unaware of the requirements), copyright in the work would be lost as the work entered the public domain.
In 1992, in part to prevent forfeitures of copyright, Congress eliminated the mandatory renewal registration requirement, automatically extending the second term for works copyrighted between January 1, 1964, and December 31, 1977. The renewal term for works in this category was automatically extended to forty-seven years.
In 1998, Congress added another twenty years of protection to works in the forty-seven-year renewal term, bringing the total possible term of protection for works in their renewal term to ninety-five years from the date copyright protection was originally secured (either through publication or registration). The 1992 renewal legislation provided a number of important incentives to encourage owners to file renewal applications, the most significant of which, for museums, is that those permitted to make a derivative work based on the original work during the first term of the copyright must obtain a new license to use the work after the first term.
Today, registration is no longer required for a copyright to exist (recall that copyright arises at the moment of fixation of an original work in a tangible medium of expression). However, registration is required to bring a legal action for copyright infringement and for statutory damages. Works may be registered through the website maintained by the US Copyright Office. There is a fee for registration, but it may be well advised depending on what is invested in a given work. In addition to registration, transfers and assignments of rights may be recorded to help others to identify the copyright holder for a given work, should permission be required. The US Copyright Office’s website provides information on transfers and assignments.9
In 1994, Congress implemented international trade treaties that for the first time covered certain intellectual property matters. The new law affects museums because copyright was restored for certain foreign works that had previously entered the public domain in the United States for failure to comply with certain formalities required by US law. To evaluate whether a foreign work is eligible for copyright restoration in the United States:
To qualify for restoration, the work must have originated in a country (other than the United States) that is a member of the Berne Convention for the Protection of Literary and Artistic Works10 (Berne Convention) or the World Trade Organization (WTO). Given the large number of countries that participate in the Berne Convention and the WTO, works published in the last seventy years almost anywhere in the world may now qualify for copyright restoration in the United States. The restoration rules are complex, and the potential exposure makes this an issue of particular concern to museums. Further, it is often difficult to ascertain the facts needed to evaluate whether a work is subject to restoration. Copyright restoration rules typically require consultation with a specialist. That said, museums should be familiar with the basic framework governing the eligibility of foreign works for copyright restoration in the United States and the rights and remedies for infringement of restored copyrights, including the special rules for reliance parties.
Fair use—an equitable doctrine that balances the rights of a copyright owner with those of society—speaks to specific uses of copyrighted works that are considered fair under the US Copyright Act. Museums are both users and creators of works and may find themselves taking potentially competing positions on fair use issues.
The tension between a copyright holder’s financial and security interests and society’s legitimate access to intellectual property led Congress to incorporate and codify a growing body of case law when it revised the Copyright Act in 1976. Fair use strives to ensure that the author’s otherwise exclusive rights do not hinder the very creativity that the law was designed to foster. The doctrine recognizes that new works draw inspiration from older works and that productive use of older works promotes the progress of science, arts, and literature. Fair use permits certain uses that, in other contexts, would be infringement. The Copyright Act identifies such uses without explicit limitation to include criticism, comment, news reporting, teaching, scholarship, and research. There are certain other fair uses, such as parody, that are not listed in the statute.
Fair use requires case-by-case determination. An activity may qualify in one instance as a fair use, while it would be an infringing activity in another context. The fact that a work is intended for an educational purpose does not automatically make it eligible for the fair use exception. For example, educational publishing is a large segment of the publishing market. Although its audience is educational users, it is a commercial activity that relies on obtaining permission to use the copyrighted works of others. By the same token, the fact that a use is commercial in nature does not in and of itself exclude the possibility of a fair use. Museum rights departments fulfill many textbook requests at commercial rates and may or may not consider these uses to be fair uses. Similarly, a number of museum activities may not be eligible for the fair use exception although they are designed for educational purposes (see the discussion of Creative Commons licenses).
The US Copyright Office’s informational circular on fair use acknowledges that the distinction between fair use and infringement is unclear and not easily defined. It provides examples of activities that the courts have regarded as fair use, including
quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library or archives of a portion of a work to replace a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported.11
Fair use in the context of objects and images is even more uncertain, although there are a growing number of best practice guides including those from the Association of Art Museum Directors12 and the Center for Media and Social Impact.13 One must determine and apply the four fair use factors (discussed herein), with all their nuances in light of new challenges presented by electronic media and without a settled body of fine art-specific case law (in the case of art museums). The growth of the internet has been accompanied by a liberal interpretation of both freedom of speech and the fair use exception. The ease and speed of downloading and manipulating images, and the mass of unrestricted images on the internet, lull many users into assuming implied licenses to copy, print, and distribute internet materials. Some liken transmitting copyrighted materials via e-mail to sharing the newspaper or showing a picture to a friend. Social media may compound infringement because distribution is quick, easy, and inexpensive.
In the 1976 Copyright Act, Congress articulated the test for determining whether a particular use is fair:
These criteria cannot be evaluated in isolation as a mathematical formulation, but rather the test is a totality of the circumstances analysis. Although the flexibil
Generall y speaking, nonprofit uses will receive more protection than for-profit uses. However, if the use is for-profit, but serves primarily as news reporting, comment, criticism, or education, then the purpose and character of the use may be deemed worthy of fair use consideration. An overarching concept is that copyright owners should benefit from any use of their copyrighted works that generate profits. Although the com mercial use of copyrighted work tends to weigh against a finding of fair use, and non-profit use tends to weigh in favor, there is nothing conclusive about these presumptions. It is important to evaluate whether the use of a protected work adds something new to the work, transforming raw material into new information, new aesthetics, new insights and understandings, or what has been recognized as transformativeuse.
Depending on the type of copyrighted work that is being used, access may be more or less important to the public interest. Access to works of scholarship may be considered more important from a social perspective than access to fictional works (and factual or scholarly works may be seen as less creative than fictional works and thus more available for fair use). Thus, more latitude tends to be granted for copying factual works.
In determining whether a fair use defense is appropriate, a court will consider the amount and substantiality of what has been copied from the underlying work. The court may consider what proportion of the work has been copied or how important the copied portion is to the work as a whole. That is, the analysis is both quantitative and qualitative, examining how much is too much. Generally, the greater the amount taken, the less likely it is that a court will find the use fair. But how much is too much? This is not a mathematical formulation, and there are no absolute quantitative and qualitative rules. Sometimes even a small amount taken may be unfair if the borrowed material is the heart of the work. A work of visual art is generally viewed as a whole, and borrowing more than is necessary is often difficult to assess. Taking (using, reproducing) the entire work does not necessarily mean that the new use is not a fair one because the test examines all the factors.
This final factor in determining whether the use of another’s copyrighted work qualifies as fair is the commercial import of the use. Financial incentives encourage the creation of new works. When a copyright owner objects to another’s use of the copyrighted work on the basis of the negative impact such use has on the owner’s market, the owner need not show actual harm; potential harm is sufficient. Using this factor, a court may evaluate actual market harm caused by the particular actions of the alleged infringer and also the adverse impact on the potential market for the original. In analyzing the effect on the potential market for the original, courts are to consider traditional, reasonable, or likely markets in evaluating the marketplace effect of the use.
In addition to the activities listed in the Copyright Act as fair uses (e.g., criticism, comment, news reporting, teaching, scholarship, and research), other uses of copyrighted works enjoy fair use protection. These include uses that transform the underlying work, including parody, appropriation, and other recognized categories.
Transformative use means that the new work does more than simply recast the original work to create a derivative work. Instead, the creator uses the underlying work to make a different work that stands on its own as an original expression. It is often difficult to determine whether the new expression adequately transforms the underlying work, and the outcome will depend on analysis of all the facts of the use.
Parody is by nature transformative. A parody involves using someone else’s work, in whole or in part, for the purpose of humor, ridicule, comment, or the like. A work parodying another will likely use some distinguishing features of the original work to make a clear association between the original and the parody. It is through this association that the parody achieves its purpose of commenting on the original work.
Although parody as fair use presents another area of highly subjective and fact-intensive analysis, the courts have attempted to craft some guidelines. From the cases decided to date, several elements emerge for determining whether parody will be found to be fair use. A parody should comment on the original work; include only as much of the original material as is needed and not enough to confuse the consumer or public, or dilute the commercial value of the original; and should not seek to replace the original in the marketplace.
Appropriation art, by its very nature, uses the work of another in a different context. The appropriated work may be protected by copyright or trademark. The purpose of the use is to alter or comment on the meaning or intention of the original work, and it may take the form of reproducing a single image, or incorporating many images into a compilation or collage. Appropriation is not always enthusiastically received by the creator of the original work. Andy Warhol, for example, was often embroiled in claims by photographers that he had misappropriated their photographic images. Appropriation art is an important means of expression for visual artists. It is equally certain that controversies will continue to arise with regard to the appropriation of works. The guidelines for free speech, fair use, and the first sale doctrine provide some guidance for the ongoing discussion and resolution of such matters.
Open access materials are available online and can be used by anyone for free without any copyright restrictions. Open access is not a form of copyright infringement. It is different from fair use, although they can support each other. Open access is consistent with copyright law and allows people to reuse, repurpose, and build upon materials. The Resources section has a variety of approaches including examples from the Cleveland Museum of Art, the Art Institute of Chicago, the Getty Open Content Program, and the Met Open Access Policy. The Rijksmuseum in Amsterdam was an early adopter of this approach.
Creative Commons is a tax-exempt organization that provides free legal tools to enable authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. Recall that copyright today arises at the moment of fixation of an original work and that the level of originality may be very minimal. As the internet boomed in the 1990s, all kinds of creative expression—from e-mail and later social media (user-generated content)—generated copyright. Many of these copyrighted works were either meant to be shared widely or were not the kinds of works that the creators intended to control closely. The automatic formation of unintended copyrights led the founders of Creative Commons to develop a suite of easily used licenses that work with copyright law. These licenses allow creators and copyright holders to give permission to others to reproduce and otherwise use copyrighted works in any number of ways—from all rights reserved to the ability to place one’s works in the public domain. The Creative Commons website14 provides extensive, straightforward explanations of the licenses and how to use them. Each license is expressed in three ways or layers—in plain language (human readable), in formal legal language (lawyer readable), and in a machine readable version of the license, “a summary of the key freedoms and obligations written into a format that software systems, search engines, and other kinds of technology can understand.”15
Creative Commons licenses are legally enforceable and recognized worldwide. These licenses can be used by rights holders and museums alike to both retain and manage copyrights—and still share reproductions with teachers, students, and anyone else who may be interested—thus advancing the public educational work of the museum. All Creative Commons licenses require attribution to the original creator. Some also require sharing one’s new work under the same license, not making changes to the work, and not using the work commercially. Rights holders may pick and choose which license requirements they want to accomplish—whatever works for them. As long as the user complies with the terms of the license, they are free to use the work.
Should a museum make a work available online (or otherwise) with a Creative Commons license, users may contact the museum for permissions needed for uses that exceed the stated license. Individual licenses or contracts may be negotiated for particular uses as needed. Creative Commons licenses give blanket permission to make certain types of uses as needed.
Although the Creative Commons license framework is designed for the internet, it may be used with any media. Licenses may be applied to print materials (of course, without the machine-readable layer) as well as online. These licenses are now widely used in the galleries, libraries, archives, and museums (GLAM) community. They are fundamental to the success of aggregators for cultural institutions participating in Europeana and the Digital Public Library of America (DPLA).
It is critical to keep in mind that one must be the copyright holder to apply for a license. For example, an art museum may have sculptures, paintings, or other works in its collection that the museum owns but for which the museum may not hold copyright. In the process of acquisition, museum registrars can play a vital role in negotiating acceptable uses that meet the museum’s need to make reproductions for educational, scholarly, and research uses. The right to make such reproductions for products—postcards, books, and so forth—may also be negotiated.
Thoughtful use of Creative Commons licenses can be helpful in agreeing on and describing acceptable uses, but they cannot be unilaterally assigned except by the copyright holder. If the museum owns the copyrights through transfer or assignment of those rights, it may, in turn, assign a license of its choice (Creative Commons licenses may be applied to work created by museum employees and contractors, provided the service contracts include provisions for the museum to be the copyright holder or licensee; this kind of museum-created or produced content is beyond the scope of this volume but is of critical importance for today’s museums).
As noted, Rightsstatements.org was developed by Europeana and the DPLA as a complement to Creative Commons licenses. The rights statements are a stable uniform resource identifier (URI) designed for cultural organizations to use to describe the rights status of works in their collections as presented in an online context. Whether digital copies of analog materials or born-digital copies, museums may select the appropriate rights statements to associate with particular works. Museums today generally desire to make collections available online to the extent legally possible. The rights statements describe the status of the underlying work; they are not meant to apply to reproductions of the underlying work. One of the principles of Rightsstatements.org is that museums are expected not to assert rights to the resulting intermediate digital copy. This is explored in the formative white paper for Rightsstatements.org (in the Resource section).
An understanding of the law governing copyright is not an end in itself, but it is a necessary prerequisite for museum professionals to set institutional policy and make informed judgments about specific issues. Important steps toward a comprehensive approach include a carefully crafted copyright statement for staff and volunteers that addresses such issues as work for hire, appropriate use of museum materials, a rights and reproductions policy for outside users that articulates appropriate uses and applicable fees, and a trademark policy that identifies properties eligible for trademark protection. The policy should also address departmental enforcement responsibility within the institution.
Museums make policy decisions in every department: Who has access to the collections? Who has permission to reproduce objects from the collections? May sponsors use the museum name and images, and if so, how? Should the donor be consulted if the museum plans to make a commercial use of a donated object? Should the museum require transfer of copyright when acquiring a work in its copyright term, or is a nonexclusive license more appropriate? When and how should a museum negotiate with artists’ rights societies? Who clears rights that the museum does not own, the museum or the third-party user? When a museum has conducted an adequate but unsuccessful search for the copyright owner, what next? When is it appropriate to institute litigation against infringers and how aggressive should the museum be? It will reasonably be expected that different museums will approach management of intellectual property differently depending on the nature of the institution, its mission, structure, size, location, print and electronic outreach activities, product development, and a host of other factors.
The law reflects a balance of competing interests, but professional ethics may articulate a duty above the minimum threshold of the law. Museums have the right to decide how, when, and by whom the col lections information is used, and they have the responsibility to exercise that right with professional judgment and in an even-handed manner. Museums also have the responsibility to respect the intellectual property of others. In the absence of a favorable fair use analysis or other applicable limitation or exception to copyright, activities implicating copyrights are ill-advised without permission. Museums have a responsibility to establish policies to vigorously monitor copyright and trademark issues in house. The principles outlined in this chapter will provide the necessary guidance. •
Association of Art Museum Directors. “Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums,” October 17, 2017. Available at: https://aamd.org/sites/default/files/document/Guidelines%20for%20the%20Use%20of%20Copyrighted%20Materials.pdf (accessed June 10, 2019). (The AAMD’s guidelines were prepared by lawyers with deep experience in art museums. The guidelines explain fair use in an approachable and relevant way.)
Center for Media and Social Impact, School of Communication, American University. “Codes of best practices.” Available at: https://cmsimpact.org/codes-of-best-practices/ (accessed June 10, 2019). (This site provides a wide range of practical, relevant resources about fair use in the context of particular disciplines with help for libraries, poets, documentary filmmakers, and more.)
Creative Commons. “About the licenses—Creative Commons.” Available at: https://creativecommons.org/licenses/ (accessed June 10, 2019). (The site is well designed and provides copious material. Start with this link to material that explains the basic licenses and explore from there.)
Hirtle, Peter. “Copyright term and the public domain in the United States.” Cornell University Library. Available at: https://copyright.cornell.edu/publicdomain (accessed June 10, 2019).
Hirtle, Peter B., Emily Hudson, and Andrew T. Kenyon. 2009. Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums. Ithaca: Cornell University Library. Available at https://ecommons.cornell.edu/handle/1813/14142. (This small book is available for free under a Creative Commons license; you can print a pdf from this website, or hard copies may be purchased elsewhere for those who prefer a bound book. This book should be in the professional library of every registrar.)
Steiner, Christine, Michael Shapiro, and Brett I. Miller (eds.). 1999. A Museum Guide to Copyright and Trademark. Washington, DC: American Alliance of Museums. (This guide is a helpful overview of both copyright and trademark in the museum context.)
RightsStatements.org. “White paper: Recommendations for standardized international rights statements, International Rights Statements Working Group, October 2015 (last updated May 2018).” Available at: https://rightsstatements.org/files/180531recommendations_for_standardized_international_rights_statements_v1.2.2.pdf (accessed June 10, 2019). (The Rightsstatements.org website explains the need for the statements and information for applying uniform resource identifier [URI] for online collections from cultural institutions. This white paper is a valuable explanation of the purpose of the statements, the thinking behind them, and comments on policy choices for electing not to assert copyright in certain situations.)
The Cleveland Museum of Art. “Open access.” Available at: http://www.clevelandart.org/open-access (accessed June 10, 2019). (An example of a museum engaged in open access work. The following three resources provide additional examples.)
The Art Institute of Chicago. “Image licensing—Open access images.” Available at: https://www.artic.edu/image-licensing (accessed June 10, 2019).
The J. Paul Getty Trust. “About the Getty—Open content program.” Available at: http://www.getty.edu/about/whatwedo/opencontent.html. (accessed June 10, 2019).
The Metropolitan Museum of Art. “The Met open access policy.” Available at: https://www.metmuseum.org/about-the-met/policies-and-documents/image-resources (accessed June 10, 2019).
US Copyright Office. Available at: https://www.copyright.gov/ (accessed June 10, 2019). (Find information about every imaginable area of US copyright including how to register for copyright and search Copyright Office records. The search function is somewhat limited for the needs of many museums. The US Copyright Office is working on improving public access to records regarding registration as well as transfer and assignment. The New York Public Library is in the early phases of a project to improve the utility of search functions for the Catalog of Copyright Entries [CCE].)
Volmer, Timothy. “Rijksmuseum case study: Sharing free, high quality images without restrictions makes good things happen.” Creative Commons, July 30, 2014. Available at: https://creativecommons.org/2014/07/30/rijksmuseum-case-study-sharing-free-high-quality-images-without-restrictions-makes-good-things-happen/.
Wikipedia. “Open access.” Last modified June 2, 2019. Available at: http://en.wikipedia.org/wiki/Open_access.
World Intellectual Property Organization. “What is intellectual property?” Accessed June 10, 2019. https://www.wipo.int/about-ip/en/
World Intellectual Property Organization. “What is a Trade Secret?” Accessed June 10, 2019. https://www.wipo.int/sme/en/ip_business/trade_secrets/trade_secrets.htm
Young, Anne (ed.). 2018. Rights and Reproductions: The Handbook for Cultural Institutions, 2nd edition. Washington, DC: Rowman & Littlefield and American Alliance of Museums. (This is an indispensable volume that every museum professional should be aware of in addition to Copyright for Cultural Institutions noted above. Written by a professionally diverse group of experts from museums and libraries, it is well edited and deeply relevant.)
1. Available at: https://www.wipo.int/portal/en/index.html.
2. Available at: https://www.law.cornell.edu/uscode/text/17/102.
3. Available at: https://www.law.cornell.edu/uscode/text/17/102.
4. Available at: https://www.law.cornell.edu/uscode/text/17/101.
5. RightsStatements.org, “White Paper: Recommendations for Standardized International Rights Statements, International Rights Statements Working Group, October 2015 (last updated May 2018).” Available at: https://rightsstatements.org/files/180531recommendations_for_standardized_international_rights_statements_v1.2.2.pdf (accessed June 10, 2019).
6. Available at: https://www.law.cornell.edu/uscode/text/17/109.
7. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32012L0028.
8. Available at: https://copyright.cornell.edu/publicdomain (accessed June 10, 2019).
9. Available at: https://www.copyright.gov/.
10. Available at: https://www.wipo.int/treaties/en/ip/berne/.
11. Available at: https://www.copyright.gov/history/1961_registers_report.pdf.
12. Available at: https://aamd.org/sites/default/files/document/Guidelines%20for%20the%20Use%20of%20Copyrighted%20Materials.pdf (accessed June 10, 2019).
13. Available at: https://cmsimpact.org/codes-of-best-practices/ (accessed June 10, 2019).
14. Available at: https://creativecommons.org/.
15. Available at: https://courses.lumenlearning.com/masteryfacultytraining1xngcxv2/chapter/understanding-creative-commons/.
We wish to acknowledge the assistance of Vicki Gambill, Director of Collections Management, The Broad; and to recognize Michael Shapiro’s contribution to the copyright portion of the book, A Museum Guide to Copyright and Trademark , noted previously, which was excerpted in the previous edition of Museum Registration Methods.