A Legal Primer on Managing Museum Collections by Malaro, Marie C. -- Read -- Imperial Library of Trantor

Index

Cover Title Page Copyright Dedication Contents List of Figures Preface Acknowledgments Introduction Footnote Abbreviations and Citations Part One. The Museum

Chapter I. What Is a Museum? What Is Required of Its Board Members?

A. Museum Defined B. A Trust C. A For-Profit Corporation D. The Charitable Corporation E. The Standard of Conduct Imposed on Boards of Charitable Corporations F. The Standard Applied to Museums G. Conclusions H. What May the Future Hold?

Chapter II. Museums Are Accountable to Whom?

A. Role of the Attorney General B. Can Donors Sue? C. Expanding the Concept of Standing to Sue D. Museum Cases Involving the Issue of Standing to Sue E. Oversight by Taxing Authorities F. As Recipients of Federal Financial Assistance

Part Two. The Collection

Chapter III. Collection Management Policies

A. Why a Collection Management Policy? B. Guidelines for Preparing a Collection Management Policy

1. General Comments 2. Definitions 3. Drafting the Policy

a. Statement of Purpose and Description of Collections b. Acquisition of Objects c. Deaccessioning d. Loans e. Objects Placed in the Custody of the Museum f. Care of the Collections g. Records h. Insurance i. Inventories j. Access to the Collections

Chapter IV. The Acquisition of Objects: Accessioning

A. The Meaning of the Word “Accession” B. Delegation of Authority to Accept Objects C. What Is Title? D. Circumstances That Can Affect the Quality of Title

1. The Status of the Transferor 2. Misrepresentation by the Seller 3. Warranties in a Sale and the Uniform Commercial Code 4. Other Statutes and Remedies Affecting the Sale of Fake Collection Objects 5. Stolen Property

a. Statutes of Limitations and the Doctrine of Laches b. Adverse Possession

6. Objects Improperly Removed from Their Countries of Origin

a. The 1970 UNESCO Convention b. The U.S. Implementation: The Convention on Cultural Property Implementation Act c. Post-1970 UNESCO Convention Activity on an International Level d. Court Cases Concerning Archaeological and Ethnological Materials

1. United States v. McClain 2. Government of Peru v. Johnson 3. United States v. Schultz

e. Criminal Investigations and Prosecutions f. Museum Ethical Codes g. Collecting Cultural Property of Foreign Origin: Issues Ahead h. Claims for Cultural Objects Displaced during the Nazi Era i. Native American Graves Protection and Repatriation Act j. What Might the Future Hold?

7. Laws Protecting Plants and Wildlife (and Parts Thereof)

a. Lacey Act b. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) c. Endangered Species Act d. Marine Mammal Protection Act e. Migratory Bird Treaty Act f. Bald and Golden Eagle Protection Act g. The Wild Bird Conservation Act h. African Elephant Conservation Act i. Antarctic Conservation Act j. Application to Museums

8. Laws Protecting Antiquities and Historic Properties

a. Antiquities Act of 1906 b. Archaeological Resources Protection Act of 1979 c. National Historic Preservation Act of 1966 d. Impact of Antiquities Laws on Collections

E. Circumstances That Can Affect the Completeness of Title

1. Restricted Gifts

a. The Offer of Restricted Gifts b. Is the Gift Restricted? c. Interpretation of Restrictive Language d. Relief from Restrictions

2. Copyright Considerations

a. What Is Copyright? b. Has Copyright Expired? c. Was Copyright Lost?

1. Pre-1978 Rules 2. Current Rules for Domestic Works 3. Current Rules for Works of Foreign Origin

d. Who Owns the Copyright?

1. Works Made for Hire

a. Pre-1978 Rules on Commissioned Works b. Current Rules on Commissioned Works

2. Copyright in Existing Collections

e. Has Copyright Been Transferred?

1. Pre-1978 Rules on Automatic Transfers 2. Current Rule: No Automatic Transfers of Copyright as of January 1, 1978 3. Transfer of Copyright by Agreement 4. Other Considerations

f. What Can the Museum Do without Permission? The Fair Use Doctrine g. Digital Uses

1. Digital Uses: Financial Considerations 2. Digital Uses: Rights Considerations 3. Digital Uses: Older Licenses 4. Digital Uses: Strategies

h. Fair Use in the Digital Environment

1. Digital Fair Use: Orphan Works 2. Digital Fair Use: Risk Reduction Strategies for Online Posting 3. Digital Fair Use: What the Future May Hold

i. Digital Uses: Legislative Developments j. Rights Management of Museum Holdings: General Considerations k. Additional Information on Copyright Issues

3. Trademarks 4. Protection for Indigenous Traditional Knowledge

a. Traditional Care b. Indigenous Traditional Knowledge: International Developments

5. Other Restrictions on Use: Artists’ Rights and Content-Related Rights

a. Artists’ Rights: Droit Moral—The Visual Artists Rights Act of 1990 b. Artists’ Rights: Droit de Suite c. Content-Related Rights: Privacy, Publicity, First Amendment

1. Rights to Privacy 2. Right of Publicity 3. First Amendment Rights

F. Acquisition Procedures

1. Role of the Collection Management Policy 2. Deeds of Gift 3. High-Risk Acquisitions 4. Special Tax Considerations

Chapter V. The Disposal of Objects: Deaccessioning

A. The Practice of Deaccessioning B. The Process

1. Legality of Deaccessioning 2. Procedure for Deaccessioning

a. The Need to Establish the Museum’s Clear and Unrestricted Title to the Object under Discussion b. The Proper Authority to Approve a Decision to Deaccession c. Documentation Needed to Support Proposed Deaccessions d. The Appropriate Method of Disposal e. Notification to Donor of Deaccession f. Use of Proceeds Derived from Deaccessions

C. Requests for the Return of Collection Objects

Chapter VI. Loans: Incoming and Outgoing

A. Incoming Loans

1. Liability Exposure 2. Insurance 3. Authority to Accept Loans 4. Loan Policy 5. Handling and Use of Objects on Loan 6. Duration of Loans 7. “Permanent” Loans 8. Change in Ownership 9. Return Provisions 10. Sample Incoming Loan Agreement

B. Outgoing Loans

1. To Whom Will Loans Be Made? 2. What Will Be Loaned? 3. Loan Approval 4. Care of Objects 5. Insurance 6. Duration, Cancellation, and Return 7. Sample Outgoing Loan Agreement

C. Nontraditional Loans

1. Lending for Profit/Borrowing for Profit 2. The Bought Exhibition 3. Temporary Art and Site-Specific Installations

D. Corporate Sponsorship E. Individual Donor Support

Chapter VII. Unclaimed Loans

A. The Problem B. The Common Law Solution C. Legislative Solution: State Unclaimed Loan Statutes D. How to Avoid the Problem of Unclaimed Loans in the Future E. Researching Unclaimed Loans

Chapter VIII. International Loans

A. Types of Loans B. Immunity from Seizure

1. Imported Objects 2. Exported Objects

C. The U.S. Indemnity Program D. Force Majeure E. New Security Rules for International Cargo F. Checklists for Organizing and Implementing International Exhibitions

Chapter IX. Objects Left in the Temporary Custody of the Museum

A. Objects in Temporary Custody as Distinguished from Loans B. Temporary Custody Procedures C. Return Provisions D. Sample Temporary Custody Receipt Form

Chapter X. Objects Found in the Collections

A. The Problem B. When Claims Are Made C. Exceptions to the Rule D. When the Museum Wants to Dispose of Objects Found in the Collections

Chapter XI. Promised Gifts

A. Obstacles to Enforcement B. Arguments for Enforcement C. Determining the Strength of a Claim D. Should a Museum Sue to Enforce a Gift? E. Pledge Forms

Chapter XII. Tax Considerations

Part 1. Tax Considerations Relevant to Gifts

A. The Tax Status of the Donee Museum B. Income Tax Consequences of Charitable Gifts to “Publicly Supported” Museums C. Concept of “Unrelated Use” D. Spreading Out Charitable Deductions E. The Bargain Sale F. Premiums or Benefits Associated with Gifts and Substantiation of Gifts

1. Premiums or Benefits 2. Substantiation of Gifts

G. The Museum’s Position on Donor Deductions

Part 2. Tax Considerations Relative to Audit Purposes

A. The Problem B. Museum Response to FASB and GASB C. Schedule M of IRS Form 990

Chapter XIII. Appraisals and Authentications

A. Appraisals

1. The Museum’s Position 2. When Appraisals Are Required 3. IRS Appraisal Format 4. The “Qualified Appraisal” 5. IRS Review of Valuations 6. Recommending Appraisers

B. Authentications

1. Misrepresentation 2. Disparagement 3. Defamation 4. Release Forms and Other Precautions

Chapter XIV. Care of Collections

A. The Duty B. Inventory Procedures and the Reporting of Missing Objects C. Other Security Precautions D. Conservation E. Disaster Planning

1. The Individual Museum 2. A National Approach

Chapter XV. Insurance

A. Scope of Discussion B. Obligation to Insure C. The Role of Insurance D. Selecting a Policy E. Insurance Professionals F. Model Policy

Chapter XVI. Access to the Collections

A. Visiting Hours B. Availability of Collection Objects C. Access to Collection Records

1. Federal Freedom of Information Act 2. Federal Privacy Act 3. Federal Sunshine Act

D. Requests to Limit or Deny Access E. Access for the Disabled

1. Legal Requirements 2. A Suggested Approach to Compliance

Chapter XVII. Visitor and Employee Safety as It Relates to Collections

A. Responsibility Owed the Public B. Responsibility Owed Employees C. Fire and Related Hazards

Appendix A. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, Adopted by the General Conference, UNESCO, at Its Sixteenth Session, Paris, November 14, 1970 Appendix B. Title III of Public Law 97–446: Convention on Cultural Property Implementation Act Appendix C. Curation of Federally Owned and Administered Archaeological Collections

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