PLEASE NOTE THAT THESE FAQ WERE PREPARED IN 2004 – IT IS ENTIRELY POSSIBLE THAT SOME ELEMENTS WILL NO LONGER BE ACCURATE OR REFLECT CURRENT LEGISLATION. USE OF THESE FAQ IS ENTIRELY AT YOUR OWN RISK.

What are the issues related to the creation of postcards of works produced by children participating in museum activities?

There will be copyright issues in this case and the consent of the parent/guardian will be required before the works can be reproduced.

Are there any copyright issues in making installation shots of art works in a museum/gallery available on the Internet?

It is advisable to clear copyright in all the works that appear. However, if copyright cannot be cleared for any reason, the risk can be minimised if the works are reproduced at a low resolution since this will reduce the means to make commercial use of the works.

Is copyright infringed if a photograph is taken of a person who is standing in front of an art work?

If the inclusion of the art work is incidental, then copyright is not being infringed;
But if the focus is on the art work, rather than the person, then the inclusion of the art work without the clearance of rights would constitute an infringement.

For example, the shot of a bookshop which includes the covers of books would not be an infringement and permission for the inclusion of each book cover would not need to be sought. However, if a collage comprised of a hundred album covers is reproduced, permission to reproduce each cover in the collage will need to be sought.

What is taking “reasonable effort” in tracing rights holders?

Reasonable efforts require the user to record a full account of the resources and time spent in trying to find the rights holder – including, for example, the time taken to search the internet etc. A due diligence file should be kept in which paper copies of all efforts are kept. Any letters sent to potential rights holders should be sent by registered or recorded delivery, or by special delivery.

Are there any rights issues relating to the reproduction of the front of a book cover containing an artistic work?

If the artist’s work is still in copyright, permission will need to be sought. There is also the possibility of typographic copyright existing in the layout of the front cover – which is likely to belong to the publisher;
Trademark law might be an issue if a trademark features on the cover.

Can the contact details of copyright holders be passed on without contravening Data Protection legislation?

Ideally the permission of each rights holder should be sought before their details are shared;
If not, probably the best thing would be to forward mail on to them on behalf of a third party.

If photographs are digitised as an online resource, what would be the potential issues relating to trademark?

The rules governing trademarks are legislated under a separate Act to those governing copyright etc.;
“Passing off” could be an issue particularly with regards to the context of the use;
If commercial products, like postcards, include trademarks, there might be a real issue of infringement;
However, non-commercial activities such as educational use are unlikely to be an issue;
In all cases, there is a need to deal with the issues pragmatically.

What are moral rights?

These are the rights that belong to the author relating to his or her ‘honour’ and ‘reputation';
Moral rights are non-assignable, although they can be waived;
Moral rights relate to the creative endeavours themselves and fall into three categories:
the right to object to false attribution;
the right of paternity (right to be identified as the author);
the right to object to derogatory treatment
If a museum/gallery employs an artist, as long as the copyright is assigned, the museum/gallery would own the copyright, although the moral rights would vest with the artist (although they would be v. limited).

Does the right to object to derogatory treatment include the right to object to the reproduction of bad quality images on a website?

Since there is currently no case law, it is not a foregone conclusion that cropping or manipulation would constitute an infringement of moral rights;
However, the hazy reproduction of old photographs etc could be deemed to be derogatory treatment if they are published online, because they could be viewed to be prejudicial to the honour and reputation of the artist.

Could the black and white reproduction of a colour photograph be viewed as derogatory treatment?

In France, case law has established that colourising a black and white photograph would constitute derogatory treatment;
However, for documentation purposes in the UK, a case of derogatory treatment is unlikely. Ultimately, it depends upon the context of the copying and whether the black and white reproduction were presented as the original photograph or not.

Can the ‘criticism and review’ fair dealing clause be applied to the reproduction of artistic works for use in sponsorship proposals?

Fair dealing in the UK is about taking so much of the work as is justified for that purpose. The criticism and review exception does not need to be favourable, or even about that work;
In the case above, it is unlikely to be fair dealing since the use might compete with the economic benefits to the artist. In commercially related cases such as these, it is important to look at the real purpose behind the reproduction.

Would the copyright in catwalk photographs belong to the photographer or the models?

The photographer will be the first owner of copyright in these pictures, unless copyright has been assigned to someone else;
If these photographs were taken before 1989, they might be viewed as portraits, and so the copyright in them would belong to the person commissioning the photograph. If however, they were taken after 1989, the copyright in them would belong to the photographer;
In terms of the models’ rights, in UK law they would not have any rights (unlike in German and French law). However, there may be an issue of Data Protection and fair processing in films/photographs where the models can be identified, and their consent would be needed. This is, though, not tested yet in case law;
If the photographer is a freelancer, then prior to any photographs being taken, it is best if the photographer assigns his/her copyright to a museum/gallery by means of an assignment of copyright clause in the contract for services. If the photographer is an employee, then copyright will automatically belong to the institution.

How long does copyright last in unpublished works?

Copyright in works of art lasts for the lifetime of the author plus 70 years after their death;
Copyright in unpublished literary or dramatic works, regardless of the date of publication or how old they are, will last until 2039 (1988 Copyright Designs and Patent Act);
Copyright in unpublished works belonging to the Crown will last until 2039;
Copyright in anonymous unpublished art works will last until 2039;
If the author of any work died after 1969, copyright duration will depend upon when they died.

What is the nature of a copyrighted work?

Works need to show originality, and/or skill and judgement;
Copyrights may exist in many works including those in an archival file For example, any archival file may contain a number of different types of works, such as photographs, letters etc, with different rights holders and possibly differing durations of copyright protection.

What is the difference between the ownership of an artefact and the ownership of copyright?

There is an important difference between the two:
For example, if a letter is written for someone, the owner of the letter will be the person who received it. However, the copyright in the letter will be owned by the person who originally wrote the letter (literary copyright).

So, this means that if you receive a deposit of letters, they are likely to be from the owners of the letters, rather than the owners of the copyright in them (i.e. this means that they cannot be reproduced without the permission of the copyright owner).

What are the main issues relating to the copying of material in Archives?

Referred to in regulations of the Copyright, Designs and Patents Act, 1988 allowing for:
Archivists supplying copies of unpublished works without infringing copyright;
Librarians supplying copies of published editions without infringing copyright;
Preservation purposes;
Libraries can supply a replacement copy for another library without infringing copyright;
Supply copies for the purposes of non-commercial research and non-commercial study.

How will the new non-commercial exception clause affect Archives?

Blanket licences are not available for Archivists, because there is no agency that regulates licences for the reproduction of unpublished literary works, and so this has to be obtained directly from the rights holders;
The new measure will theoretically result in a reduction in service by Archives and Libraries, because if they discover the research is commercial, they will be unable to supply a photocopy without the consent of the copyright holder;
This exception will need a Declaration Form to be signed by the person requesting a copy, although none of the other exceptions requires one;
This regulation may be interpreted in slightly different ways since no case law has been established yet.

What is the Publication Right?

This right is given to the first publisher of a work that is out of copyright i.e. it must not have been previously published;
The first owner of publication right will be the person who first publishes the work. It lasts for 25 years;
Since “publication” in this context, means making the work available to the public, the publication right in archival material will belong to the archive;
This provision is relevant to unpublished out-of-copyright art works that a museum or gallery may make available to the public. It is also relevant to a work found in a private home and then published by a researcher/author. In this case, the researcher/author will be the first owner of the publication right;
The provision is not relevant to unpublished literary works because all unpublished literary works are in copyright until 2039!

Is there a copyright issue in the exhibition of archival material?

The display of the original work is not an infringement;
However, any digital or online display without permission would be an infringement because this type of display involves the copying of the original;
Additionally, the performance of music without permission would also constitute an infringement.

What is Authorisation?

This is the permission to copy that can only be got from the rights holder.

How can rights be enforced in the taking of photographs of archival material?

This is difficult to do under copyright law;
However, rights can be enforced under contract law.

What are the rights related to typographic works?

Typographic copyright exists in published works and may relate to the separate rights, for example, that exist in the arrangement of the layout of a page;
The duration of copyright in typographic works lasts for 25 years after publication;
Typographic copyright does not exist in art works, although art works may be part of the layout of a page that is afforded typographic copyright protection.

Are there any rights issue relating to facsimiles?

This relates directly to whether there is any copyright protection afforded to photographs of art works. Although this has never been properly tested in the UK, there is probably enough skill and judgement in the photos of art works to afford them copyright protection in their own right.

What is happening about the charging of licensing fees for commercial copying?

Anyone requiring a document under the old legislation and seeking to use the “Library Privileges” exceptions would have to sign a declaration form;
This exception now only applies to copies made for non-commercial purposes;
The CLA Sticker Scheme covers those copies that are required for commercial purposes. More information about the scheme can be found at:

http://www.cla.co.uk/directive/stickerscheme.html

What should be done if the rights holder of a 90 year old work in an archive cannot be found?

Before the work is reproduced, a risk assessment should be carried out depending upon the work and the nature of its reproduction;
Bona vacantia might apply in certain limited situations if there no-one owns the copyright in a work. It may, for example, apply to the work of artists who have died intestate, or to a dissolved company whose debts are all discharged and whose remaining assets include copyrights. In these cases, the Crown may step in to claim the copyright as bona vacantia. Other types of situations arising in bona vacantia are summarised in “Copyright for Archivists” by Tim Padfield;

What are the main issues in US copyright law?

Copyright law in the US is part of the US Constitution in order to promote creativity and provide a balance between the public’s best interests and creativity. This balance is often delicate and more in favour of promoting artistic expression than anything else;

Fair use in the US was originally based upon the development of case law, and was expanded in 1976 as limitations of restrictions (such as parody, scholarly use and criticism);
Other relevant issues related to fair use in the US include the substantive quantity and quality of the work that is reproduced, the nature of the work that is copied, the type of use and the degree in which the copy competes in the market with the original.

What is the relevance of US copyright law to UK museums?

Travelling exhibitions may include the display in the US, as well as an accompanying exhibition catalogue which is sold in the US;
Merchandise may be sold in directly in the US, or alternatively over the web to clients in the US;
Works by US artists may be reproduced and their direct permission may need to be sought.

What is the Right of Privacy/Publicity in the US and how can it affect museums?

There are significant variations in law between countries in Europe and between Europe and the US;
A person’s likeness or name cannot be used for the purposes of trade;
The right dies with the person;
The right applies to everyone, not just those in the public eye;
There is a consistency in State and Federal law in dealing with infringement cases;
One such case involved the inclusion of a woman in a photograph taken by a famous German photographer. The woman sued under her Right of Privacy;
The reproduction of the likeness of someone carried out by a museum during its daily activities and to encourage public access to art is likely to be viewed under US legislation as educating the public, rather than infringing rights.

How can Personality Rights affect the work of UK museums?

We are slow in the UK to recognize Personality/Privacy rights;
The recent case of Eddie Irvine, racing car driver, provided a good precedent. His image was being used without his consent, in order to endorse a company’s commercial activities. He sued and won the case since the use of his image in this way without his authorisation would infringe his rights and in particular be tantamount to “passing off”;
Museums should be aware of the above case, and also be cautious if they are using names of famous people on merchandise, since names can be trademarked;
Similarly the photography of people, or recording of voices etc, may be in breach of the Data Protection Act, since data would likely to have been processed in the capturing of their image, sound etc. In this case, consent is likely to be required;
The National Portrait Gallery has commented that people in portraits etc. are also beginning to assert their rights.

What were the key issues and implications of the Bridgeman v. Corel case?

The case and its implications for museums and galleries are summarised on the Museums Copyright Group website (http://www.museumscopyright.org.uk/bridge.htm)
Additionally, it is important to stress that the Prosecution’s case was fundamentally flawed because, from the start, they conceded that the clip art images were “slavish” copies. This admittance undermined their own case, since skill and judgement are required in order to competently create a photograph of an art work;
From an American perspective, the case cannot be relied upon – it is more of a “flash in the pan”. Prior to the case, digitised images were rejected for copyright protection by the US Copyright Office. However, subsequently they have been afforded copyright protected, particularly as compilations.

How can trademark laws protect IPR in the US?

This is a popular vehicle of protection in works where copyright has expired;
There have recently been three important test cases brought to the US Federal Appeals Court under the Lanham Act, where parties were sued for the unauthorised use of a person’s name and/or likeness. The Lanham Act deals with non-registered trademarks and in particular, their false designation of origin. There cases were:
Tiger Woods case;
Babe Ruth case;
Rosa Parks v. a record company.
The judgements were based upon the context of the use and how far rights existing in the use of someone’s image or in the use of their name without their authorisation.

What are the opportunities for museums/galleries to make money from IPR?

Licensing of images/text;
Location agreements to allow filming on the premises (if the museum/gallery occupies a premises in which it has the exclusive right to authorise this);
Development of a merchandise range, such as Tate/B&Q paints; National Trust products etc.;
Sponsorship deals in which businesses pay for the benefit of their names on products and marketing material.

What are the key elements to remember in a licensing agreement?

Before you grant rights, you need to know which rights you have and what you can do with them;
Never enter into a long term contract unless there really good reasons to do so in order to provide cover in case circumstances change;
Non-exclusive agreements will give you the freedom to enter into similar agreements, whilst exclusive agreements will restrict you;
Retain quality control and rights of veto over the final product/use.

What are the potential risks to the opportunities of making money?

Need to establish whether a museum can trade or not;
Does the museum own the rights themselves? For example, it can be difficult to establish who the photographer was of old photographs;
Are there any other rights holders? For example, are the art works still in copyright? If rights holders cannot be found, what compensation can the museum offer in case they do come forward?
Entering into contracts can create commercial/legal risks.

How can risks be minimised for the reproduction of material if the rights holders cannot be found?

Tracing rights holders can be very time-consuming and even mean working across jurisdictions. It might be worthwhile balancing the perceived efforts in tracing the rights holders against the benefits in terms of enhanced public access or money that is generated;
Document all enquiries and keep lists on digital rights management (DRM) systems;
Make a plan and prioritise the most important works needed to be reproduced. Balance the risks, such as the benefits of income generation versus public access. NB: 95% of income from Corbis and Getty comes from contemporary works still in copyright – not historic images!
Make a contingency plan in case rights holders come forward, such as putting money aside;
Use copyright guides to establish the rights that you can use as well template agreements for the licensing out of rights (For example, model agreements can be found at the back of “A Guide to Copyright for Museums and Galleries” and “Copyright for Archivists”);
Keep records to track the duration of rights;
NB: In works of “revived” copyright, the works can be copied if you find the rights holder and offer them reasonable re-numeration for income;
Ultimately, if you do not want to take risks, do not reproduce the work!

Can disclaimers be used by Picture Libraries and at what point should a disclaimer be incorporated within the contract with the end user?

Need to make sure that the image is supplied, rather than authorisation granted for the use of the image;
If material is supplied for publication, then a copy should not be supplied without prior authorisation;
BAPLA (British Association of Picture Libraries and Agencies – http://www.bapla.org) can supply more guidance.

How much does copyright clearance cost?

Copyright fees can vary from between £10 – £10,000 depending upon the nature of the rights holder and the use of the image;

Tracing rights holders can be complicated and time consuming, and involve hidden costs in terms of staff time and efforts;
Money needs to be kept to one side in case rights holders come forward after publication.

How can risks be minimised when a work is commissioned?

Try and make sure that rights are assigned back in a contract;
If rights cannot be assigned, then restrict what the commissioned party can do with the work;

Try and secure the signing of model release forms from all participants.

These FAQ’s were originally prepared in 2007 by Naomi Korn (www.naomikorn.com).

Disclaimer

These FAQs were intended as guidance as of January 2004 and do not constitute legal advice. Neither the Museums Copyright Group nor the author can be held responsible for any misinterpretation or inaccuracy in these guidelines.