R.A.R.I.N. MAKE MY DAY, USE MY IMAGE
New Visual Resources Technologies and Some of The Applicable Laws from the User's Viewpoint
Thomas W. Bower
National Museum of American History
Smithsonian Institution
I am here to discuss in non-legalese how we can respond to requests for use of publicly held images and information in the many new formats that have appeared in the last decade. Copyright, Freedom of Information, Privacy and Sunshine laws all deal with information and access to it. As we become a more information and image hungry society, we need to be informed to stay out of harm's way. While the application of some of these laws might effect us only rarely, it is better to be prepared than to have to respond to an angry constituent or, worse, a subpoena.
First of all, I am not a lawyer, but I, like you, confront image and information use questions every day. There are many situations that can be properly responded to by reading these laws and responding in a logical way about the challenge at hand. However, if you find yourself in a situation about which you do not feel absolutely certain how to proceed, contact an attorney. Common sense, caution, and patience are primary virtues when dealing with control and use of information.
What are these laws? Copyright, Freedom of Information, Sunshine, and Privacy laws are intended to provide us with safeguards to encourage our creativity without inhibiting our freedom of expression as a society and to strike a balance between protecting our basic rights while encouraging us as a society to be aware of how public responsibilities are carried out.
First I will discuss copyright issues. Then, briefly Freedom of Information, Privacy and "Sunshine" laws.
From the perspective of the art historian, museum professional, researcher, and other visual resources worker, there are two sides to the issue of intellectual property use rights. What do we need to do our work and what do we need to protect the materials entrusted to us or created by us? The laws exist. How do we deal with the daily challenges that come across our desks?
Regarding charged copyright fees, I am not talking about production fees, nor for an image to be used for individual research or study, but fees for the commercial reproduction of an image. We are making an asset held in public trust many instances available to a commercial interest and have a right in the law to share in the profits of that use.
Copying may be the sincerest form of flattery, but when does it become theft. Modern copyright concerns come from the Renaissance when printing became widely available and copying an image became progressively easier, more profitable, and more difficult to control. Starting in the 16th Century laws were being written to protect "ownership" of an image created by one individual from being copied and sold by another. This is the concept of ownership of an intellectual property.
When the US Constitution was created it stated in Article 1, section 8 "The congress shall have power to promote progress of science and useful arts, by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries." There have been a series of laws since 1790 which have sought to define what that statement means.
In the last decade, the use of electronic media to convey information and images has gone from the imaginative "toy" of a few wealthy institutions or the experiment of those with particularly talented computer staffs to a common tool of communication. One of the few things that has not changed is the nature of the application of the various laws which govern the ownership/use of images and the rights associated with them. Laws are applied regardless of the medium in which the image was created or to which or through which it is conveyed. The laws apply to the image regardless of its format.
The only change electronic formats have made is that they magnify anything that goes well or wrong. The potential audience (and profits) from videos, CD-ROMs, etc. is immense. Equally challenging is the ease with which our images can be pirated, manipulated, or controlled by others.
There are a number of practical procedural provisions one can follow to eliminate many of the potential pitfalls of these laws. As public institutions, to respond to inquiries one is advised to make certain exactly what is really being requested. A publisher of Civil War memorabilia recently asked to publish one of our battle flags. The vague indication of use from his initial letter led one of our staff to charge him $200 for a use that ultimately he was given for free after defining a much more scholarly and limited publication. Frequently a conversation with a requester will allow one to narrow the inquiry and determine the nature of the request. Know the specifics about how the image(s) will be used so the appropriate safeguards can be
put in place. It is useful to create a request form for use of your images. Have the potential user state who will use the image, what its use will be, how often it will be used, what the format will be, how many countries/languages will be involved, etc. There should be different charge to a one-time hobbyist newsletter for a thousand subscribers and the cover illustration of a text book with a press run of 100,000 copies.
The nature of the use should determine what should be charged, not the nature of the user. How will the image be used? It is important to know who will be doing the publishing as many writers are being asked by publishers to get the rights for their materials; but it is more important to know what the final result will be - a newsletter or a coffee table book. We do not want to inhibit non-commercial educational efforts, but neither do we want to subsidize the publishing industry. Everyone has the option to waive fees, but having no fee structure leads to charges of unfairness and a lot of time spent defending one's decisions. We have to behave in a business-like manner in today's world.
How much do you charge? What is the balance between being supportive of the diffusion of knowledge and "giving away the farm"? Usually, color is more than black and white, cover use is more than editorial, large runs are more than small ones, commercial products are more than scholarly ones. It is important to do your own investigating of what is reasonable among your potential users, but always be specific and consistent.
This is simple advice, but get all agreements in writing. It is frequently better to prepare your own standard contract that defines the limits you desire, than to base one's statements on memory. Do not be pressured by outside deadlines from others or verbal promises. Make a new contract for each use. Contracts for open-ended use of an image effectively give away your rights; they save neither time nor money in the long run.
After you know what is requested and that you can respond to the situation, read the most current version of the contract (regardless of who prepared it) and sign only one with which you are in full concurrence. I know of one institution that signed a contract initially prepared by them for use of images in an educational video. They did not notice the addition of "and all subsequent versions". The video was wildly popular and they only received the fee they had entered for the original use. Read anything you sign. If you are in doubt ask for more specifics and/or seek legal advice.
On the other side of the issue, make certain what rights you have before responding because you don't want to convey what you don't have. Under the present copyright laws, if a creator of an image does not convey the rights associated with it, then they may not be assumed to be conveyed. When objects are acquired, the documentation of the transfer must address the issue of which rights transfer, particularly the right to reproduce the work in copies, to distribute copies to the public for sale or rental, to adapt the work to a derivative work, and to display the work publicly other than in the owner's space. It is possible to own just the rights to display and reproduce the work in publicity materials, but not books, postcards, etc. The artist would retain the rights to any commercial use of the images. Get what you really need. Clearly document which rights you have and which need to be negotiated with the creator when a future request occurs.
If you possess documentation that states you own or you do not own the reproduction rights to an image, you can proceed in an established manner. What about images where you are not sure if you own any rights and you have no way of finding out who does? Be able to document what you have done to locate any potential copyright holder. Include an indemnity statement that you are allowing use to the extent you have rights, but it is the responsibility of the user to track down any other owner of rights and you should be held blameless. Charge your usual fee for the use of the image, but retain the fee in an escrow account for a period of time incase the copyright holder appears.
When you give others the right to reproduce your image(s) electronically, make certain that part of the final product will be a notice that informs viewers that the image they are seeing is yours, just as you would for a printed request. On its new slot on America on Line, the National Museum of American Art puts copyright notice on both image and the following screen with data; as well as an overall statement about restrictions when you enter their node. For protection in some of the new media, images are conveyed that are of sufficiently low quality that any further transference will not be an acceptable image. In other instances the copyright notice is placed "in" the image. As far as the law is concerned, electronic media are not different from print media. Notice might not be as aesthetic as one might like, but always state what you own.
For everyone who is placing research or articles on various electronic networks remember to include a notice of copyright and what if any reproduction/downloading you allow. For those who wish to copy that information, the concept of "fair use" is to support education and criticism, but it is a limited exception and should not be used to cover prohibited use of images and information.
Of course, notice of copyright interest only protects you from honest individuals. How can you protect yourself from the rest of the world? Regardless of your efforts to control the use of your collection materials, one day you will see your image where you did not give permission for it to be used. If the situation looks like it will involve a large amount of money, you are probably justified in contacting a lawyer. At minimum, you should write the individual who has "stolen" your image and put them on notice of the violation. You will probably get no response, but at least you have established your rights. In fact, if you do not defend your rights vigorously, you could loose them the next time someone pirates your image and you do not have a history of asserting your ownership.
In summation regarding copyright laws acquire the rights you need and regarding requests, know what rights you possess, have a pre-approved written document that states your fees and the reasons for any waiver or reduction of fees. Know specifically what the user wants and have it in writing. Prepare and sign a uniform contract that governs the who, what, when, where, and how of the use.
In addition, you should establish your stance regarding publication of a detail or an "enhancement" of an image if you own those rights. I have been discussing financial aspects of reproduction rights, we are also responsible for what the user does to the image. A separate session could discuss the moral rights that should be considered in the use of an image.
I have been talking about the rights that go with a "creation", but there is a body of other laws relating to access to information. They are covered by the following very limited discussion of Freedom of Information, "Sunshine", and Privacy law provisions. These laws will probably only rarely be used since most of our information is readily available and most of us work very hard to make it more so. However, it is useful to be put on notice that some of our information (collection and organization) might have to be made available when we do not want to share it. In a similar manner, there are some areas of information that must be held confidential.
These laws have very complex interpretations and exceptions. In general, courts are tending to support broad access and full disclosure, but the specifics of a situation can make a dramatic difference in what is the best response. Get a full understanding about what is requested; seek advice within your organization, professional peer support group, and/or legal counsel; and then react.
One guiding principle about how you will respond depends on who you are legally - federal, state, or local. This is determined by who chartered your organization, where you are, and what activity is involved. In large part, where your money comes from will determine the laws to which you will be held accountable. The purpose of these laws is to enforce the fact that in the broadest sense we are in many instances public trustees of objects and their information as well as public money and we have to behave in the most responsible way.
All of these laws concern themselves with records about how government agencies operate. The courts are using this to mean most publicly funded organizations and virtually any kind of documentary material including photographs, computer records, videotapes, film, etc. Three-dimentional objects are not included. While the courts have been broad in their interpretation of what an agency or record is, there are exceptions. There is a balance between the public's right to know and an organization's need to feel free to discussion how best to manage its affairs.
Among the exceptions are documents that are opinions, if they are prior to a decision being made. Embarrassment to the organization is not a reason to hold back information. Commercial information where the source is a commercial enterprise outside the organization may be protected, but not otherwise. For example, valuations may be considered private if they are provided from outside the organization; though there are some situations, such as tax abuse, where they might not be considered to be withheld.
One area that could effect information about collection items is the exception that if release of location information might risk harm to an historic or archaeological resource or impede the use of a traditional religious site by practitioners the information may be withheld. In addition, the source of collections and their address may be protected by Privacy Law regulations, but if certain abuses were identified as the reason for the request, then you might have to provide the information.
Requests for information under the Freedom of Information Act laws cover organizational activity and most information not narrowly considered personal or commercial. When making agreements with other institutions for sharing computer system information, it is wise to realize the full implication of sharing data may include shared legal status as well.
When responding to public requests, the above laws do provide for reasonable reimbursement for copying of documents. It is wise to have a policy in place about how many pages of copying you provide for free before any request occurs regardless of the purpose of the request.
Privacy laws were created to protect personal data and allow access by an individual to information about him or her held by public organizations. In general, this prohibits organizations from giving out personal information particularly addresses, phone numbers, and financial or medical data. It is permissible to release requested documents with names or other identifying information blanked out.
Sunshine laws open agency board meetings except for personnel and commercial issues. The purpose of these laws is to provide for the opportunity of the public to be informed about their use of publicly held assets.
The best defense against any potential problems about access to information in your files is a common one that we government workers have used since the time of President Nixon. Would you drop your morning coffee if the document you just filed appeared on the front page of the Washington Post tomorrow? It is advisable to regularly review your files and get rid of anything you do not want to see on the front page of your local paper. Encourage staff to insure that correspondence deals only with the issue(s) at hand and not to references to individuals or situations that you do not want publicly viewed. Sensitive correspondence should be returned to the sender. You are not responsible for records you do not have. If you can show you regularly clean your files, you will have little to worry about. But do not destroy anything once a request has been made. Requests for information are taken very seriously and must be responded to fully and promptly.
In conclusion, in addition to our institution's scholarly endeavors, we are all moderate to large sized businesses that are having to operate in a very public and litigious world. Those of us involved in managing and sharing visual resources are entering a challenging period of time. We have to present our images and information to the public in as broad a manner as possible and make use of images of our collections in a way that meets our educational mandates and provides support for the maintenance of those collections. We have a resource and a basis in law to help us use them wisely.
I acknowledge as a source for much of the information I have provided, the many presentations I have attended at the American Law Institute - American Bar Association Legal Problems in Museum Administration programs since 1981. I strongly recommend that anyone who can attend these annual sessions do so. At minimum acquire and read the study materials. I also thank the most generous support and response to an inquiring mind that I have received from members of the Smithsonian Institution's Office of the General Counsel over many years, particularly Ildiko DeAngelis, James Douglas, Lauren Grant, and Christine Steiner.