The reactions from Robert Panza and Robin Panza (is this just a
coincidence?!!) to Christine Dwyer's question were accurate and useful, but
I'm going to make a much stronger statement.

It's high time museums got out of the very unwise and absurd habit of having
donors routinely sign a deed of gift which asserts that the donor owns all
rights, including copyright and trademark, and is giving everything to the
museum.  Except in those cases in which the creator of the object is the
donor, the donor rarely owns anything other than the physical object itself
and should not be asked to sign a document containing a falsehood.  The truth
is that most people either don't read the things other people ask them to
sign or they do so without thinking.  If Joe Sixpak donates a General
Electric light bulb to your museum, I think it's incredibly dumb and frankly
irresponsible to shove a deed under his nose that states he owns the object
AND all rights and is giving you the light bulb plus all those rights.
Practically speaking, there probably won't usually be any legal ramifications
for such a blunder, but why encourage someone to sign a lie?  You can work
out the details and precise language with your lawyer, but it seems to me
that every museum needs a generic deed of gift which states that the donor is
giving you the object only, without misleading language about copyright
and/or patents and trademarks.  I don't know if it would be advisable to
state explicitly that the donor does not claim to have intellectual or
creative rights to give, but my gut reaction is that it wouldn't hurt.

In my opinion, museums need 3 standard deeds (with the option to develop
separate customized agreements for more complex situations): (1) an
object-only document, as described above, (2) a deed, suitable for the
creator of an object, stating that the donor has all rights and is giving
them along with the object, and (3) a deed which states that the donor owns
all rights, but is ONLY giving the object plus standard museum rights (a
non-exclusive license) to exhibit, lend, and reproduce it IN ITS OWN
PUBLICATIONS, while retaining other intellectual property rights, which
essentially means that the museum cannot provide third parties with
reproduction rights.  (Third-party reproduction requests must be referred to
the copyright holder.)  I suspect that most art museums are astute enough to
operate this way, but it appears that other kinds of museums need to wise up.

I've been lobbying for some time to get my own museum to be more careful with
deeds, but thus far not many are paying attention.  Some curators routinely
have donors sign the wrong kind of deed, the giving-all-rights type, when it
should be perfectly obvious that the donor couldn't possibly HAVE "all"
rights to give.  I've heard the argument that when such a situation is
obvious, it really doesn't matter, but that's ridiculous.  Again, why ask
someone to sign a lie or a meaningless document?  It may not lead to a legal
problem, but it could certainly cause confusion at some point.  If I give a
Coke bottle to a museum and sign such a deed, I can imagine someone
consulting the records 300 years hence and jumping to the conclusion that I
owned the Coca-Cola trademark.  Why encourage such confusion?

Occasionally one of these blunders does come back to haunt the museum, as in
the case which initiated this thread.  I would never assume that the donor of
a photograph has the copyright unless he or she was also the photographer.
And when a donor, whether it's the photographer or not, donates a print (made
from a negative or transparency which resides somewhere else), I assume
they're giving the physical object and the non-exclusive museum license
without other rights.  Usually, a photographer wants to continue to control
the copyright, including the freedom to make additional prints without having
to get permission from anyone.   Conversely, if a photographer donates
original negatives or transparencies, I request all rights because there
usually isn't any point in owning a negative or transparency without those
rights, and would make this explicit in the deed.

Often someone donates something which is old enough to be in the public
domain, because applicable copyrights have expired.  Here again, the donor
has no intellectual property rights to transfer and should not be asked to
sign a deed which states that he or she does own those (expired) rights.  We
should at least try to keep the record straight, even if an error would
appear to have no practical consequences.

Ultimately, the paperwork which accompanies an object being donated to a
museum is part of the historical record for the object, and it seems to me
that it's the job of museum professionals to make sure that ALL the records
we create are as clear, correct, and accurate (and legal) as possible.
Information regarding the provenance and legal status of acquisitions needs
to be every bit as accurate as catalog descriptions and exhibit labels.
Preparing and executing a deed of gift needs to be taken seriously.  Although
it's somewhat troubling that your average Joe Sixpak will blithely sign an
incorrect deed of gift without reading it or thinking, it's not his job to
keep the museum on its toes.

I was going to add that I don't know how to inspire or teach people to be
more careful about what they sign, but perhaps I do after all.  It occurs to
me that a museum could do a very educational exhibit on these issues,
incorporating examples of both donated objects and their attendant
documentation, with suitable explanations.  To weave into this that other
thread about appraisals, one might include examples of appraisals, the tax
forms, etc.  Now about those privacy and confidentiality issues...

David Haberstich

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