In a message dated 01-01-19 23:49:24 EST, David Haynes wrote:

<< Actually, I don't see this situation as granting a license. I suppose
 it's just a matter of my total non-familiarity with the law, but I see
 granting an institution the right to copy an original and allowing it to
 use the resulting negative as it sees fit analogous to donating a
 physical object. >>

I must respectfully disagree with you on this, David, based on my analysis of
the situation (call it a gut reaction), plus the corroborating opinion of an
attorney, which I received just today.  I consulted a lawyer from my
institution's legal office, and she agrees with me that this situation
constitutes a licensing agreement, not a donation.  Donating property and
giving rights to use it may be analogous in some respects, but they're not
identical transactions.  Our museum's varied forms of Deeds of Gift include
language in which the donor of an object gives us either an exclusive license
or a non-exclusive license to use, exhibit, and reproduce the object,
depending upon whether he/she owns copyright, trademark, or other rights,
and, if owned, whether or not they're being transferred to the museum with
the physical property.  Whenever we grant anyone the right to reproduce
anything from our collections, our legal counsel considers these rights
licensing agreements.  In the reverse situation, when a private individual
grants an institution the right to own and reproduce a copy of an object
which he/she owns, that too is a licensing agreement, not a gift.  (And if
someone else holds copyright, of course, the "donor" doesn't have the right
to sign a licensing agreement in the first place.)  While the right of an
institution to use or reproduce a copy of an image, the original of which is
held and owned by a private individual, might well be granted in perpetuity,
the agreement would have to stipulate such a condition to avoid being
challenged or rescinded.  As a lawyer for the institution, my advisor says
she would argue for retaining reproduction rights permanently even if the
agreement didn't stipulate perpetuity, but she acknowledges that if push came
to shove, the owner could in fact succeed in revoking the agreement.  Here's
where I part company with her: I personally wouldn't even attempt to
circumvent an owner's desire to revoke the agreement because I think it would
be bad PR--but that's just my opinion

The moral, to me, is that if a museum wants to retain the right to continue
using a copy image indefinitely or permanently, the "licensing agreement"
should stipulate perpetuity.  As I suggested in an earlier post, I frankly
think that's a bad idea from the standpoint of the owner of the object.  If
you're not donating the original object--and gifts are permanent, virtually
by definition--it doesn't seem reasonable or fair to me to commit your family
or other heirs, who will eventually own the object, to this kind of
agreement.  I see it as a potential encumbrance to their ownership of the
object, and I suggested that, in the case of a particularly valuable object,
the fact that a third party such as an institution has permanent reproduction
rights to copies could lower the market value or salability of the original.
The institution may prefer a vague, open-ended agreement because putting
language into the agreement specifying perpetuity might raise a red flag to
the owner--as well it should.

An institution which wants to compile a file of copy images of privately
owned materials for educational use has a number of options.  You could avoid
any complications by having a policy of making them available for looking and
museum use, such as exhibition, only.  (But of course it's been my experience
that many serious users ultimately want to reproduce them.)  You could go
further and make them available for educational, nonprofit reproduction only.
 Or you could allow commercial use too and charge reproduction fees.  Or you
could refer all requests for reproduction to the owners.  Your licensing
agreements with the owners could be a collaborative venture, with the owner
retaining a voice in reproduction issues (which would be complicated to
administer).  You could ask owners to sign nonexclusive but permanent
licensing agreements to limit your complications (but as a private owner or
collector, I wouldn't sign such an instrument, and I think many sophisticated
owners wouldn't sign one).  I wouldn't dream of requesting an "exclusive"
license--I don't have that much chutzpah.  You could have agreements for
specified periods of time, which can be renewed periodically, an obvious
headache (a colleague who has had experience with such agreements for
anthropological films suggests that the licensing agreement stipulate that
it's the owner's responsibility to appoint either a family or legal
representative to renew the agreements, and that the usage rights will revert
permanently to the institution if the owner or owner's representative doesn't
take care of business in a timely fashion).  Or you could have licensing
agreements which don't specify duration and just hope the owners don't seek
to terminate or revoke them.

It probably sounds like I'm unnecessarily complicating things and making
mountains out of molehills, and I'm sure that's true in many cases.  I'm
merely saying that these copy file projects may not be as simple as they
seem, and it would be a mistake to think an owner couldn't revoke your
agreement if it doesn't spell out conditions specifically.  The important
thing is that being granted the right to own and use copies of a private
owner's property is not the same as getting a donation.

Unless you solicit specific permanent rights to use copy images, you should
recognize the fact that your rights may be limited.  It follows, I should
think, that you should therefore keep such files or copy image libraries
distinct and separate from materials that you own outright, just as you would
identify original materials which are not yet in public domain or for which
artists and creators, such as living photographers, have not transferred
copyright to you.  An institution should be very clear in its own collective
mind and should convey to potential users all copyright restrictions and any
other reproduction restrictions covering materials which may be public domain
vis-a-vis lapsed copyright or uncopyrighted status but which nevertheless are
controlled to some degree by an outside owner of the originals.

Sometimes maintaining copy files, however laudable the educational intent
behind them, can be more trouble than they're worth.  I have a colleague who
wants to produce a copy negative (and/or digital image) file for researcher
use, of work by a well-known living photographer whose art is in demand, who
gets high reproduction fees, and whose original prints sell for four figures
each.  I feel that this file would be of little more value than just having
in the library a mass-produced book, illustrated with the photographer's
work.  Although the file, if it becomes a reality, will look deceptively like
a museum "collection," it will really be more analogous to a picture book in
the library or an image CD.  In its potential to blur the lines between
library and museum functions, it could constitute as much a disservice to
users as a service, misleading them by looking like a primary resource when
it's merely a limited, secondary resource.  At worst, it could be tantamount
to serving as an agent for the photographer, since all reproduction requests
will have to be referred back to him for service at his regular high prices.
That's an extreme example that goes far beyond the parameters of the
situations described in the original questions which stimulated this
exchange.  But it helps explain why I'm generally leery of copy files in
museum collections.

A further example: we have a negative and print file of copies of original
19th-century photographs in another major institution.  They were created as
research material to support a special exhibition.  We make them available as
a convenience for researchers who happen to be in our museum rather than in
the other institution, in another city.  I warn users up front that we can't
provide reproductions--they must consult the other institution--so their
value is limited, compared to that of our primary collections.  I think it
would be counterproductive to catalog these copies or do anything further
with them.  I would hate to discard them (I'd send them to the owner of the
originals first) and I don't discount their convenience value, but frankly, I
think the space they consume would be more appropriately devoted to original,
primary collection material.

Just some food for thought...

David Haberstich

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