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- What are the issues related to the creation of postcards of
works produced by children participating in museum activities?
- Are there any copyright issues in making installation shots
of art works in a museum/gallery available on the internet?
- Is copyright infringed if a photograph is taken of a person
who is standing in front of an art work?
- What is taking "reasonable effort" in tracing
rights holders?
- Are there any rights issues relating to the reproduction of
the front of a book cover containing an artistic work?
- Can the contact details of copyright holders be passed on
without contravening Data Protection legislation?
- If photographs are digitised as an online resource, what
would be the potential issues relating to trademark?
- What are moral rights?
- Does the right to object to derogatory treatment include the
right to object to the reproduction of bad quality images on a website?
- Could the black and white reproduction of a colour
photograph be viewed as derogatory treatment?
- Can the 'criticism and review' fair dealing clause be
applied to the reproduction of artistic works for use in sponsorship proposals?
- Would the copyright in catwalk photographs belong to the
photographer or the models?
- How long does copyright last in unpublished works?
- What is the nature of a copyrighted work?
- What is the difference between the ownership of an artefact
and the ownership of copyright?
- What are the main issues relating to the copying of material
in Archives?
- How will the new non-commercial exception clause affect
Archives?
- What is the Publication Right?
- Is there a copyright issue in the exhibition of archival
material?
- What is Authorisation?
- How can rights be enforced in the taking of photographs of
archival material?
- What are the rights related to typographic works?
- Are there any rights issue relating to facsimiles?
- What is happening about the charging of licensing fees for
commercial copying?
- What should be done if the rights holder of a 90 year old
work in an archive cannot be found?
- What are the main issues in US copyright law?
- What is the relevance of US copyright law to UK museums?
- What is the Right of Privacy/Publicity in the US and how can
it affect museums?
- How can Personality Rights affect the work of UK museums?
- What were the key issues and implications of the Bridgeman
v. Corel case?
- How can trademark laws protect IPR in the US?
- What are the opportunities for museums/galleries to make
money from IPR?
- What are the key elements to remember in a licensing
agreement?
- What are the potential risks to the opportunities of making
money?
- How can risks be minimised for the reproduction of material
if the rights holders cannot be found?
- Can disclaimers be used by Picture Libraries and at what
point should a disclaimer be incorporated within the contract with the end user?
- How much does copyright clearance cost?
- How can risks be minimised when a work is commissioned?
Disclaimer
- 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;
- NB: a checklist of suggestions for tracing rights holders is available from
Bernard Horrocks at the National Portrait Gallery.
- 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;
- To find out whether a work has been passed to the Crown as bona vacantia
enquiries (together with the name of the last owner) should be addressed to:
Treasury
Solicitor (BV),
Queen Anne's Chambers
28 Broadway
London SW1H 9JS.
- 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.
FAQ's prepared by Naomi Korn (www.naomikorn.com).
Disclaimer
These FAQs are 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.
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