Art & Copyright: Four Steps to Help Reduce Risk in Re-Use

When museums add transparency to ownership records and the copyright determination process, they can reduce risk — and increase confidence in the creative re-use of art by the public.

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Edgar Degas, Frieze of Dancers, c.1895 | Cleveland Museum of Art Open Access Collection

If you’re developing a publication or an image based product, but you’re not confident about how to confirm whether a work of art is in the public domain, frankly it’s easier to just stay away from using art entirely.

Museums including the Barnes Foundation, Metropolitan Museum of Art, and the Cleveland Museum of Art work hard to provide free re-use of public domain works in their collections. However, for the person who wants to re-use the work, the fine print says determination is at the risk of the person who deploys the materials.

Without clarity on how the museum determined that the original work is in the public domain, fear of copyright infringement can prevail.

How can museums show it’s safe to use their art?

Four steps to increase transparency and build user confidence:

Step One: Assert Your Ownership

Make it clear to the public which works of art are in your permanent collection. Institutions like the Museum of Modern Art make it simple to search their collection on their website, and publish collection data to Github for people to download and use. This makes it easy for a person to know to come to MoMA for information on the original object, and to ask for permission for a property release.

Step Two: Check Your Records & Explain Restrictions

Transparency goes a long way in building trust and confidence. Are there any restrictions in the donor or acquisition agreement that prevent you from distributing images of the object? If so, explain the “why” behind any restrictions in simple terms.

People can understand that museums may have limitations due to the terms of the artist or the donation — and with that information in hand, can quickly move on to search for an alternate work that is available (or track down the person that can grant permission).

Kimberly Bush managed intellectual property licensing for the Guggenheim for more than 20 years, where she researched and verified rights holders.

“At the Guggenheim, we would try to be preemptive in verifying third-party rights holders so that we could provide scholars and individuals seeking to use our collection works a clear road-map for clearing image rights.” — Kimberly Bush

When works are under copyright, identifying and sharing information on the copyright owner allows for faster connections, negotiations and permissions.

Step Three: Check the Copyright Status & Share Your Research

It is important to check and link acquisition records, as the copyright may have been transferred as part of the sale, or donated to the institution by the artist. If you do control the copyright, people who want to license the work will know they can come to you for permission.

Your museum’s legal team may have copyright determination guidelines for you to work within, and technology can be used to navigate the complexity of copyright law.

Dr. Elizabeth Townsend Gard is an IP professor at Tulane Law School, and co-creator of the Durationator.

“Copyright is really hard, and sometimes you just need someone to say, it’s going to be okay. Our system distills copyright laws down to a manageable format so that you don’t have to know a huge amount of copyright law — or any copyright law — to determine the status of a work. By adding in a little bit of data, we can determine three things about a work of art: 1) whether it’s under copyright or not, 2) if it is under copyright, how long the term is, and 3) if any Section 108 exceptions apply.” — Dr. Elizabeth Townsend Gard, Tulane Law School

Once you’ve made the determination, publish your research on the copyright status as part of the object record, so people understand why it is flagged as under copyright or in the public domain.

Step Four: Provide a Receipt for Public Domain Art

Your research process and copyright determination policies demonstrate best efforts and due diligence to respect the rights of copyright owners.

Dr. Ron Gard is an attorney and professor at Tulane University, and is the co-creator of the Durationator. He recommends adding transparency to the determination process to encourage re-use and reduce risk.

If you’ve determined that the work is in the public domain, and the museum allows people to re-use your image of the work, take the extra step and provide receipts for re-use requests. Create a record, including the date you granted permission to use your file, along with the reason you’ve identified the original work of art as public domain.

Let’s work together to Open Up Art

Making the ownership records and copyright determination process transparent protects the owner and the person seeking re-use.

And as more people start to understand the relationship between the two, trust and confidence grows for including more public domain art in creative projects.

Rachel Wright leads Product and Business Strategy at CultureTech, where we’re on a mission to Open Up Art through technology.

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