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  • 1.  Copyright Questions

    Posted 04-17-2020 04:33 PM
    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

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  • 2.  RE: Copyright Questions

    Posted 04-20-2020 11:14 AM
    Hi Caitlin,

    These are indeed complex questions. I don't think there is any way to avoid getting a lawyer involved. Your collection is too important. US copyright law changed radically in 1978, so you will need someone who understands the status of copyright at the time your works were made. The rules do vary. In general, anything created before 1978 is fully protected by copyright for 95 years from the date of creation. And yes, if an artist is deceased, copyright transfers to their estate.

    To a large extent, all you unknowns tell me you are dealing with some  "Orphaned Works," pieces whose copyright status is unknown. The last several sessions of Congress have been drafting legislation to address orphaned works, but nothing has passed yet. I doubt it is currently on anyone's front burner. To your number 3, possession of a work and ownership of copyright are two entirely different things. You will never get the copyright of something whose author is unknown; the best you can hope for is that it eventually enters the Public Domain.

    Copyright can be transferred in a written legal agreement (you need a lawyer), but the transfer can also be terminated by the original copyright owner under certain conditions (you need a lawyer).

    Sorry, but it is complicated. And considering that the penalty for statutory violation of copyright can go up to as much as $150.000 per violation (per work), you Board may decide that a lawyer's fee is money well spent after all.

    Good luck!

    Bill


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    Bill Barrett
    Director
    May Gallery, Webster University
    Saint Louis MO
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  • 3.  RE: Copyright Questions

    Posted 04-21-2020 12:07 PM
    A short response to Caitlin's copyright questions. I did copyright work many years ago,and won't attempt any specific advice.  Just a few suggestions, the first of which is not any lawyer will do as you need a copyright specialist if you get into intricacies of possession.  This is especially true as the their is a common law copyright in addition to a statutory law administered by the Federal govt.  But there may be other avenues to explore.  In Chicago years ago I was part of a volunteer group called Lawyers for the Arts.  We had expertise available pro bono on exactly the kinds a questions she is asking. A few calls to bar associations nearby or even inquiries to Chicago may find someone who is helpful.  there are more free sources of legal assistance than is generally known usually through bar associations, who also have arts oriented subcommittees.  Another approach is to contact larger law firms  that do intellectual property work and ask for assistance pro bono (maybe good start would be lawyers that support your museum).  Lots of lawyers are looking for interesting things to do outside their billed clients and state licensing authorities encourage pro bono work so firms like to encourage their lawyers to do it.
    Whatever help you find, you may find they may advise that many of the questions you ask are answered by the question, "who has standing to make a copyright challenge and how likely  are they to do so."  This is often a research question in the first place. This might be a good question to explore with colleagues at other museums:  how do they assess this risk for similar categories of works.  Just some thoughts. Ken

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    Kenneth Fenner JD
    DOCENT
    National Hispanic Cultural Center
    Albuquerque NM
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  • 4.  RE: Copyright Questions

    Posted 04-20-2020 02:07 PM
    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 States

    If 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 US

    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?

    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.  


    ------------------------------
    Dallas Long PhD
    Associate Dean
    Milner Library Illinois State University
    Normal IL
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  • 5.  RE: Copyright Questions

    Posted 04-22-2020 08:40 AM
    I am an attorney who practices not only in the area of copyright law, but as it relates to museums and collections.  Most of the replies made are correct, and involve issues of fair use, orphan works, and these issues can sometimes be complex.  Happy to discuss with you generally.

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    Michael Oropallo JD
    Attorney
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  • 6.  RE: Copyright Questions

    Posted 04-22-2020 11:11 AM
    Caitlin,
    First, I highly recommend the book Rights & Reproductions: The Handbook for Cultural Institutions, Second Edition, American Alliance of Museums, Rowman & Littlefield, 2019.
    Second, you might be interested in the online course that Anne Young, the editor of the book teaches, Rights & Reproductions 1: Intro to IP and Licensing Best Practices which starts May 4 and runs 4 weeks. Rights & Reproductions 1: Intro to IP and Licensing Best Practices
    If you have any questions feel free to contact me.
    BradBredehoft@MuseumStudy.com


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    Bradford Bredehoft
    CEO
    Museum Study, LLC
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