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well be granted in perpetuity, the agreement would have to stipulate such a condition to avoid being challenged or rescinded.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 ========================================================= Important Subscriber Information: The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ . You may obtain detailed information about the listserv commands by sending a one line e-mail message to [log in to unmask] . The body of the message should read "help" (without the quotes). If you decide to leave Museum-L, please send a one line e-mail message to [log in to unmask] . The body of the message should read "Signoff Museum-L" (without the quotes).