Hi, Caitlin,
I was previously the copyright officer for my institution. Each situation can be different, depending on the circumstances, so my advice can only be very general. I'm not an attorney, and consulting an attorney is always advisable whenever possible. Questions of copyright are never as easy as they often seem. Since you've read up on copyright, I'm assuming here that you're familiar with the concept of the public domain and with the four factors that must be evaluated to determine a fair use.
1. What is the status of an object's copyright if the artist is deceased and there is no way of knowing if he or she transferred the rights? Do the rights automatically go to the heirs or their partner? Does the artwork enter fair domain?
If the artist retained their rights to the work, the rights do automatically pass to the legal heirs under the terms of the will or, if lacking a will, the inheritance laws of the state where the artist was domiciled. The work only enters the public domain when the length of copyright has expired, not when the artist dies. This is an excellent chart to help determine which works are still under copyright:
Copyright Term and the Public Domain in the United StatesIf by "object," you mean works such as sculpture, it can be a little more challenging to determine the copyright status of older works, as the definition of "published" made things blurry. A fairly good description of copyright related to public art is here:
Commons:Public art and copyrights in the US2. If an artist is deceased, does the museum need the permission of an artist's heirs, estate, or spouse to reproduce or create derivative works of an artwork if the ownership of copyrights is unknown?
Most likely, unless you have performed a fair use assessment and concluded your intended use most likely favors fair use. Many institutions feel safe when three of the four factors favor fair use, but many very risk-adverse institutions won't proceed unless all four factors favor fair use.
3. If an artist is unknown (as in, we have no idea who created the object after extensive research), how does the museum gain the copyrights? Or does the object enter into fair domain?
You probably can't gain the copyright unless you reach an agreement with the current copyright owner. The object does not enter the public domain simply because the artist is unknown. Legally, it is considered an orphan work, meaning the copyright owner cannot be identified or is known but cannot be reached. Here again, making a fair use assessment for your intended use is best, with documentation evidencing that you have attempted to identify, or reach, the owner in a good faith effort.
4. If a museum gains the full copyrights to an artwork from an artist, can those rights be sold or transferred to another institution? (I'm thinking about acquisitions between museums during a draft).
Yes, absolutely, unless the original terms with the artist prohibits the sale or transfer.
I hope this helps. I'm happy to try to answer in more depth.
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Dallas Long PhD
Associate Dean
Milner Library Illinois State University
Normal IL
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Original Message:
Sent: 04-17-2020 04:32 PM
From: Caitlin Clay
Subject: Copyright Questions
Good afternoon everyone,
I have spent a lot of my time reading about copyright over the last few weeks while social-distancing at home. The information I have learned thus far is interesting and quite complex; however, I can't seem to find the answers I am looking for in the numerous books and online articles I have read. Below are a few questions I have about copyright and how it can be used in collections. Any advice or direction would be greatly appreciated! Also, if anyone would be willing to share an example of their institution's copyright agreement, a transfer of rights form or a licensing agreement, that would be great.
Please note that we do not have the funds to consult a lawyer nor to pay the US Copyright Office to search for registered copyrights. Many of the objects in our collection were made post 1940s. We also have a large number of American Folk Art objects, which makes it difficult to identify or track artists and their families.
Questions:
1. What is the status of an object's copyright if the artist is deceased and there is no way of knowing if he or she transferred the rights? Do the rights automatically go to the heirs or their partner? Does the artwork enter fair domain?
2. If an artist is deceased, does the museum need the permission of an artist's heirs, estate, or spouse to reproduce or create derivative works of an artwork
if the ownership of copyrights is unknown?
3. If an artist is unknown (as in, we have no idea who created the object after extensive research), how does the museum gain the copyrights? Or does the object enter into fair domain?
4. If a museum gains the full copyrights to an artwork from an artist, can those rights be sold or transferred to another institution? (I'm thinking about acquisitions between museums during a draft).
Thank you in advance for your help.
Sincerely,
Caitlin Clay
Registrar
Art Museum of Southeast Texas
500 Main Street
Beaumont, Texas 77701
www.amset.org
Email: cclay@amset.org
Phone: (409) 832-3432
Fax: (409) 832-8508