What issues do Rights and Reproductions Specialists need to consider?
In her second post in a short series, Anne Young analyzes the whole range of issues that a Rights and Reproductions specialist needs to look at when making determinations. Hold tight! Read the first post here.
Open Access can’t be a practical reality if a GLAM institution struggles with essential R&R practices such as rights determinations and the development of more automated processes. So what exactly are the things that a R&R Specialist needs to consider before going Open Access?
There are a variety of intellectual property rights and other issues that must be analyzed before a GLAM collection can be released on Open Access terms. What follows is a non-exhaustive breakdown of some of the most common considerations:
Intellectual Property Rights
Copyright is a system of legal protection for original works of expression that are “fixed” in a tangible medium. This covers many GLAM materials: photos, artworks, sound recordings, books, music, etc. REMEMBER: not ideas or facts. You should check your applicable copyright law to see what is covered!
Copyright also includes public domain works and exceptions and limitations. Works in the public domain include: works that are not subject to protection under copyright law, because they do not meet requirements, they are exempt (i.e., U.S. Federal government works), their formalities were not maintained (i.e., notice or registration; only valid in the US), or most commonly, because the term of copyright has expired.¹
In most countries you have exceptions and limitations. In the US, for example, you have fair use, an exception in copyright law to the exclusive rights of copyright that, under certain circumstances, allows the use of copyrighted material without authorization of the copyright owner, based on a four-factor test.
In Commonwealth countries you have fair dealing. This typically establishes specific categories of use that are excluded from the rights of copyright owners.
What about your country? Do you have any exceptions or limitations? Check your copyright law to make sure you can use the work in the way you intend to.
Trademarks are a name, logo, slogan, color, or other unique characteristic (mark) used to identify the source and origin of goods or services. For example, GLAM names or logos may be commonly used or registered trademarks; some collections may include trademarks. Warhol’s soup cans anyone?²
Publicity rights control the commercial exploitation of elements of personhood including name, likeness, voice, image, or other identifying characteristics. Think of celebrities and uses of their name or likeness in conjunction with commercial products.³
Privacy protects private individuals against unwanted public exposure, including damage to reputation or personal dignity. Put more simply by Samuel D. Warren and Louis D. Brandeis in 1890: “privacy is the right to be let alone.”⁴
Underlying rights: a single work can contain multiple layers of copyright ownership. A copyrightable work that is used in another work is referred to as the underlying work. This can be likened to the concept of layered rights, particularly in reference to sound recordings.
Other Issues
Indigenous people or Indigenous Knowledge refers to the entire field of traditional knowledge, genetic resources, and traditional cultural expressions. Check out @Indigitization’s work to learn more.⁵
Obscenity: broadly, part of otherwise sensitive content or restricted materials in GLAM collections; the decisions to share sexually explicit materials should be made deliberately and one should be prepared to defend the proposition that the shared works have serious artistic, historic, or cultural value.
Violence: broadly, part of otherwise sensitive content or restricted materials in GLAM collections; depictions of violence and graphic materials are often interspersed within collections but sometimes they can encompass all or most of an institution’s identity (i.e., @SixthFlrMuseum or @Sept11Memorial).
Creator Restrictions: for example, an artist might wish to reserve first publication rights and prohibit a GLAM from publishing the works until the artist has had a chance to do so.
Security Concerns: these may arise with documentation photographs related to installation/deinstallation of works or even conservation treatment documentation that a GLAM may restrict to ensure the security of the building and the object(s) depicted.
Contractual restrictions: they may prevent the dissemination of images or information related to a collection of works, provisions that restrict the publication or other use of collection material for a limited period of time. These may come from a donor, seller, or creator.
Armed with these definitions, R&R Specialists can then assess collection works, record the information for their GLAM, process licensing requests, and help enable Open Access.
In our next post, we’ll get into practical steps for conducting rights determinations!
Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.
These posts were compiled out of the set of tweets that Anne did during her curation of the @openglam Twitter account. Remember you can do it too, just sign up here!
Anne Young is the Director of Legal Affairs and Intellectual Property at Newfields and editor of “Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition”, for which she received the Visual Resources Association’s Nancy DeLaurier Award in 2017.
Footnotes
[1] Megan P. Bryant, Cherie C. Chen, Kenneth D. Crews, John ffrench, Walter G. Lehmann, Naomi Leibowitz, Melissa Levine, Sofía Galarza Liu, Michelle Gallagher Roberts, Nancy Sims, Deborah Wythe and Anne M. Young, Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition. Edited by Anne M. Young. Lanham, Maryland: Rowman and Littlefield, 2019, p. 2.
[2] Idem, p. 14.
[3] Idem, p. 350.
[4] Idem, p. 20.
[5] Indigitization curated the @openglam twitter account from July 22 to August 2, 2019. They introduced very interesting notions around open access and traditional knowledge — check their summary about that experience here.
