By Sriba I. Kwadjovie

This was my inaugural year attending the Western Museums Association Annual Meeting and moderating a panel discussion titled Understanding Image Copyright. As the Senior Intellectual Property Associate for the San Francisco Museum of Modern Art, the location of this year’s conference was ideal since it was held in San Jose. Upon my early morning arrival and registration check-in at the Fairmont Hotel, I was pleased to learn that many of the attendees planned to attend the afternoon panel discussion to better their understanding of some of the legal complexities regarding image copyright.

Sharing the panel with me later that same day, were two presenters, Mark G. Tratos, an attorney shareholder with Greenberg Traurig LLP and Nathan Kerr, Collections Access Specialist at the Oakland Museum of California (OMCA). The discussion was structured as an open forum and Q & A session where we encouraged attendees to ask questions they had concerning copyright and image reproductions.

The session commenced with Tratos giving a brief but comprehensive overview of copyright law and the historical significance of the 1909 Copyright Act, followed by a summary of the Copyright Act of 1976, the current legislation which serves as the basis of copyright law in the U.S.    

The panel discussion then delved into the popular subject of fair use.  Under the provisions of the Copyright Act of 1976, the Fair Use Doctrine is generally understood as the appropriation of copyright protected materials for a limited purpose such as commentary, critique or parody. 

Tratos then described how the courts often test the merits of a fair use dispute:

1. The purpose and character of your use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion taken
4. The effect of the use upon the potential market

Tratos went on to further explain each element of the test and how courts have ruled based on prevailing case law. Kerr then described OMCA’s current approach to fair use and how their understanding of it was informing their decisions on how to implement a museum-wide policy regarding image use and reproductions for various museum-related publications, events and platforms.

For many cultural and educational institutions, i.e. museums, libraries and archives, a thorough understanding of fair use is critical in informing policies and procedures of how these institutions seek to approach image usage and the distribution of information and content. 

The conversation then shifted towards the topic of functional or useful objects and understanding when an artwork owner may need to seek permissions from a rights holder when the object such as a chair, bowl or table serves a functional or useful purpose but also contains an artistic element such as a unique drawing or design that could be subject to copyright protection apart from its function. This discussion seemed particularly valuable to attendees in the session who worked at museums or institutions where many of the objects in those collections and/or in exhibitions are deemed historical artifacts but also bear distinctive artistry in their design which may be copyright protected depending on creation date and other factors.

Another issue which garnered many inquiries was social media. Many attendees were interested in learning about best practices when reproducing images of copyright protected works on third-party hosted social media platforms. My takeaway from this discussion was the importance of museums reading, knowing, and understanding the terms of use for each social media platform prior to posting content, especially content that is rights protected. A comprehensive review and understanding of the terms of use sections may help inform museums and other institutions about whether to seek further professional consultation or adopt institution-wide policies prior to sharing rights-protected images with their online visitors.

Lastly, I posed a question to Tratos and Kerr on the issue of publicity rights and best practices when taking photos or video at events where discernable faces or identifiable markings of visitors may be captured and then used in future print and/or digital publications as a means of promoting and engaging the public about current of future exhibitions and events. Both Tratos and Kerr explained that although artwork intellectual property rights may or may not be at issue, the rights of the person’s image and likeness in these photos, videos, and other content may be evoked. In these cases, institutions may want to ensure they have necessary releases or permissions from these individuals.

Image copyright is a multi-layered subject matter rich with nuance and complexity. It’s important for museum professionals to continue conversations and exchange information on how other institutions are addressing these issues in the daily operations of their respective organizations. One of the great benefits of living in the era of advanced technology is the accessibility of information and tools that can enrich our understanding of the law and how it can better serve authors and users of intellectual property.

Links to useful resources:

U.S. Copyright Office:

http://www.copyright.gov/

Stanford University Library’s Copyright and Fair Use page:

http://fairuse.stanford.edu

Center for Social Media fair use guidelines (documentary film, poetry, media education,etc):

http://www.centerforsocialmedia.org/fair­use

College Art Association, “Code of Best Practices in Fair Use for the Visual Arts”:

http://www.collegeart.org/pdf/fair­use/best­practices­fair­use­visual­arts.pdf