I would have thought that if material - photographs, documents etc - were in the public domain there would be a responsibility for a museum or institution to provide copies for research purposes and private use. If the photograph were later to be published then permission would have to be sought from whoever holds the copyright, not necessarily the institution that holds the photograph or negative, and a fee paid. If there was a possibility of the information being used in court, then common sense would suggest our hypothetical lawyer should make early contact with the archivist or legal counsel of the institution holding the photograph.
I cannot see why there should be any problem in submitting a photograph as evidence in litigation from the provider's point of view, any more than there would be a problem for a library in providing a copy of a patent or photograph of an example of prior art for litigation purposes.
It might be a different matter with private or corporate archives which are not in the public domain and where access may be legitimately refused or granted.
It seems to me that some of the main problems that arise with photographs for use in litigation are to do with authenticity and provenance. Is it an authentic photograph? If it is, what is its provenance? Who took it, when, under what circumstances, was it made from the original negative etc etc.Often much of this information is unknown, in which case the photograph is not much use as evidence.
It has always been possible to doctor photographs. It is easier still now with digital images. A recent court case has even shown that it is possible for a fraudster to gain access to the archives of prominent art institutions and insert fake provenance for fraudulent art. Anyone considering submitting photographs to a court should therefore certainly think about how they would demonstrate fidelity to the original. I would suggest that our hypothetical lawyer who is keen to demonstrate "before" and "after" at a chemical factory would be well advised to ask the archivist of the institution in question to provide notarised copies of photographs and sworn records of their provenance. A court would be perfectly entitled to ignore any evidence that had not been properly authenticated.
I was recently involved in bringing together a significant amount of information for presentation in court, including copies of forged letters held in the loan archives of a leading museum. There was never any question either about my right as a member of the public to ask for copies, nor concerning the eventual use. When it came to the possibility of use as evidence in litigation, the museum's legal counsel was informed and she made arrangements to have the copies of the material notarised.
My general experience of archivists in the UK, US and France is that they are extraordinarily ready to go beyond the call of duty in finding information. The expert researcher - or our hypothetical lawyer who fancies himself or herself as such - should however not take this helpfulness for granted. In the end we all depend on each other.
As an electrical engineer, I have dealt with a number of cases of electrical machine failure where the prospect of litigation hangs over the technical investigation into what went wrong. It is usually highly desirable not to get into litigation and the most important step in this is to maximise the area of commonly agreed facts.
It is therefore essential is to get all the information onto the table and separate this from speculation about what happened and who was to blame. Mix the two up and you are in deep trouble.
Seen in this sort of context, the provision of photographs in the public domain to one party is or should be providing information to all parties in a potential dispute. My understanding is that in the UK at least, the primary responsibility of the expert witness is now to the court and not to the party who is calling upon him or her to give evidence.
Antony Anderson
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----------
From: Jane Rupp[SMTP:[log in to unmask]]
Sent: 22 July 1999 18:45
To: [log in to unmask]
Subject: Re: litigation access to collections
Our museum is in the midst of a similar situation. I would be most
interested in any and all responses to this question.
Jane Rupp, Director
The Marion County Historical Society
South Charleston Museum South Charleston, WV wrote:
> I work for a private non-profit museum, which has in its collections
> numerous photographs of chemical and other industrial sites in the
> area. As
> a result, we have had requests for collection access from lawyers, et.
> al.
> in search of litigation material. Is there any established precident
> in the
> handling of requests of this sort? Any information is most
> appreciated.
> You can reply to the list or off-list to [log in to unmask]
>
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