Regarding Pamela Feltus's questions about
copyright:
While the questions seem basic, the answers are
actually complex. As a general statement, the Museum's archivist is
correct in saying that if there is no written transfer of rights (or at least a
license to use the images) then the images should not be used without obtaining
permission from the rights holder (presumably the photographer, but not
necessarily). This would be most definitely true for photos created
after 1978. For photos published (not created) prior to 1978 but post 1923, the
law is significantly more complex, and rights depend on many factors such as,
publication date, whether the image was registered or re-registered, copyright
notice placement, etc. One basic rule: If
the Museum knows that the photo was first published prior to 1923, then it is in
the public domain in the US, but not necessarily in foreign
countries.
It is a good idea to hire a copyright attorney
to provide basic advice on the law, and to help develop a policy on how and
under what circumstances due diligence is required. If the
Museum is not able to hire counsel, it is probably best to be
conservative. A broad rule of thumb would be to try to locate a
rights holder if the work was published between 1923 and 1978. For
works published after '78, definitely locate the rights holder. Post 1978
copyright protection lasts for 70 years after the death of the
photographer. If the rights holder is a business, the right last
for 95 years after first publication.
It should be noted that the word "copyrighted" does
not necessarily mean that someone has registered the copyright with the
Copyright Office in Washington. Prior to 1978 and post 1923, copyright was
awarded at creation. For some of those years, it was a requirement to
renew (not register) the copyright, though there were (and still are) incentives
to register prior to publication. Since 1978, there has been no
requirement to register or renew. Copyright is now awarded upon
creation.
Ms. Feltus writes about the use of photos in
exhibits, catalogues, and marketing materials. Unless the donor of the
photos stipulated otherwise, the Museum would certainly have the right to
display the photos it owns. Even reproducing a photo and hanging the
reproduction might be acceptable under Fair Use. A museum
might do this in order to preserve the original photo, which might be in
poor condition. Catalogues and marketing materials would probably need to
be cleared. Some museum professionals however, believe such uses are
Fair Uses under the copyright law. Fair Use means that under some
circumstances, such as for certain types of educational uses, rights do not
need to be cleared (To read the Fair Use clause of the Copyright Act, go to http://www.loc.gov/copyright/title17/92chap1.html#107).
Finally, the fact that the photographs are of
families, has no effect on the copyright status of the images. I should end
by indicating that I am the Executive Director of VAGA (Visual Artists and
Galleries Association), a copyright collective, which protects and administers
copyrights for fine artists.
Sincerely,
Robert Panzer
VAGA
350 Fifth Avenue
Suite 6305
New
York, NY 10118
tel. 212 736 6666
fax. 212 736 6767
E-mail. [log in to unmask]
----- Original Message -----
Sent: Wednesday, July 11, 2001 2:30
PM
Subject: Rights question
We have alot of photographs from private collections (like
family
scrapbooks) which over the past 40 years have been given to the
museum.
Now, for all my years in this field I have never had a problem
taking a
photo like these from the collection and using it in an exhibit,
catalogue
or marketing materials. We have a new archivist who is saying
that if people
did not sign a form releasing copyright when they donated,
we can not use
it. Is this true? I know it would be if we had government
photos or
something that is specifically copyrighted, but is a family
picture of
grandpa that the family (or grandpa) donated to a
museum?
Thanks!
Pamela Feltus
Curator
National Museum of
American Jewish Military History
1811 R Street NW, Washington DC
20009
202-265-6280 x201
www.nmajmh.org
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