Reproduction & Usage

Museums receive research requests for images from the public and will want to reproduce images for exhibition, retail and promotion. Understanding something about how museums can use their collection images requires a quick visit into the land of copyright.

The first thing to remember is the possession of a physical embodiment of a protected work does not give the possessor any intellectual property rights; copyright ownership is separate from ownership of an actual item.

Exhibition

Although owning an object does not automatically give the museum the copyright ownership there is a Chapter in the law itself which states that the owner of an object, even without copyright ownership is able to display that object. For that reason museum are able to exhibit items they don’t have the copyright to.

Copyright Law

TITLE 17 > CHAPTER 1 > § 109

(c) Notwithstanding the provisions of section 106 (5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy 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.

Example: A museum owns a subway map from the 1950's that was created by the map company Hagstrom's. In this case the museum could exhibit the map but cannot reproduce the map in a publication or sign over the rights to publish the map to a researcher.

Even though a museum can display something they don’t have the copyright to they have to prohibit photography by the public because that photograph becomes an unauthorized copy which DOES infringe on copyright. I know it can be confusing so please ask any questions you have about this!

Orphan Works

Orphaned works are copyrighted works whose owner cannot be located. Despite trying to track down the provenance of material as it comes into the collection you will inevitably come across orphaned works in the collection. At the New York Transit Museum we had thousands of photographs that had been donated over the years by people who had collected them from transit swap meets and the photographers name was not recorded.

The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression."

In my experience if a researcher wants an orphaned image I’ve included in a rights and reproduction contract a statement that it is left up to them to find the copyright holder if they decide to reproduce the image.

When putting collection material online there is a component to the digital millennium copyright act that gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures. For that reason museums will usually post a statement saying who to contact in the case of copyright infringement.

The copyright office is aware of the problems associated with orphan works and released a report on the matter in 2015. Nothing much has been resolved but the hope is that eventually there will be legislation that includes:

· a "fair use" for good faith users that would be liable for Reasonable compensation if a copyright holder came through,

· attaching an orphan symbol to the image for transparency,

· and talk of an improved database for locating copyright holders.

Locating US Copyright

1. Remember to ask the owner (in the case of a donation/loan), if they hold the copyright. If the owner does not control the copyright, ask if he or she knows the name and address of the legal copyright owner or owners. If they do hold the copyright, determine if the donor is willing to transfer that right and request supporting documentation.

2. Ask the copyright office

The online Copyright Office Catalog contains approximately 20 million records for works registered and documents recorded with the Copyright Office since 1978.

Included in one integrated database are registrations and pre-registrations for books, music, films, sound recordings, maps, software, photographs, art, multimedia, periodicals, magazines, journals, newspapers, etc., as well as records for assignments, transfers, and other documents relating to copyright ownership.

3. Ask scholars familiar with the item or creator

Scholars who specialize in this particular subject may know the identity of the copyright holder. You can find such scholars through their publications, or through curators and archivists who may be able to facilitate contacts.

Example: If you have a print by the photographer Hal Fullerton look for books or articles published on the photographer and ask the author about sources that might lead you to the copyright holder.

4. Contact the publisher if an image is represented in a book.

A publisher may be paying royalties on in-print works, especially when the copyright holder is still living, and may be able to provide the payee's address or forward a letter on a researcher's behalf.

5. Ask an artist or author’s society. An organization devoted to a specific artist or medium may have published information about the copyright holder.

For example, The Hemingway Society has published "Guidelines for Permissions and Publications" in its newsletter.

6. Use genealogical sources.

Genealogical sources, especially probated wills, can give the name and address of the creator's heir, estate representative, or literary executor.

7. Search national databases. Many repositories catalog their manuscript holdings online. Worldcat contain records for such holdings from repositories in the U.S., the U.K., and Europe.

8. Publish a notice in the newspaper or a website.

Museum Libraries

Purpose of the Library

Provide documentation on objects within the specific museum. For example: a photograph of a Long Island Railroad train from 1902 that was found in the museum’s collection was identified by looking in railroad periodicals of the same period in the museum library.

1. Research tool for museum staff. For example: At the Museum of the Moving Image, although the library was not open to the public, the books, videos and periodicals were frequently accessed by curators for lectures, exhibitions, publications. During the cataloging of a silent film collection I accessed the libraries resources for information about producers, directors, actors and studios.

2. Research Tool for the Public. For example: A researcher from Chicago came into the museum library to conduct research on trolleys in Brooklyn in the 19th Century. While we have little primary material about these trolleys in the museums collection we have books, periodicals, dissertations, and clippings that helped him complete his thesis project.

3. Extension to the museum objects. If a museum can only collect a small amount of a type of object, the library may collect secondary materials that supplement the objects. For example: The public or staff can learn more about the creator, works from that period or locality, other works by the creator, or other relevant background information.

4. Support staff needs other than curatorial. Museum staff should be able to rely on a library which collects in the area of museology, arts administration, art law, education, etc.

Function of the Museum Librarian

1. Compile resources (through national databases, other libraries, internal resources) for curators, historians, and education staff.

2. Catalog resources in the library and make the records available to the public through global library networks such as Worldcat.

3. Assist outside researchers with collection of books and periodicals relating to the Museum’s collections and/or the general focus of study of that museum.

4. Develop library collection based on museum department needs.

Museum Institutional Archives

Museum’s records themselves can often tell a lot about the field in which the museum is focused.

A museum's archival records could include:

1. Organizational records, in particular those which relate to administration at all levels. For example: correspondence, memoranda, minutes, financial records, reports, grant records, departmental files, architectural plans, documentary photographs and negatives, film, audio and videotapes, and publications created by the museum.

2. Collection records, such as object or specimen files and records of exhibitions and installations. These may be housed in the archives or, if actively used, in the curatorial, registration, or collections management offices.

3. Acquired materials, such as papers of individuals and organizations, which promote the museum's mission through their relation to subject areas of particular interest to the museum (e.g., science, anthropology, natural history, art, history) and which add value to the museum's collections and exhibition programs.

A great example of Museum records that contribute to the field of focus is the American Museum of Natural History has a collection of glass plate negatives from various expeditions.

There can be some crossover with library and archive collections in the Museum environment. In the AMNH library they also have photographs of staff creating dioramas, aerial surveys from the 1930s and 40s of the Peruvian Andes, photos of Machu Picchu, and immigrants at Ellis Island.

Discussion Topic

Select ONE of the below questions and answer in the discussion forum. Don’t worry if you get something wrong. I want to know what your first instinct is in these instances.

Do copyright laws apply when photographing installed artwork?
Our museum would like to display an item (photograph, sculpture, painting) that we do not hold the copyright to. Can we display it without the copyright holders permission?
Your museum has several 19th century stoneware pieces on loan and you’ve been asked to photograph the pieces for social media. Do we need permission from the owner to photograph the objects? Does the owner of the stoneware own the copyright to any of the images we take of the objects he owns?
The Museum has acquired several video interviews that were donated to us by the interviewees. What rights do we have in the video’s?
Our organization was given a small collections of photographs that were taken of various artists with their works. If we have permission from the photographer (also the donor) to publish these photos, do we also need permission from the artists (or their estates)that are in the photos? For the most part, the artwork in the photos now belongs to our organization.
When an artist donates a painting to a museum, are the reproduction rights automatically transferred?

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