I had a feeling David Haynes would be the first to respond to my questions!
He wrote me a note which I'm taking the liberty of appending below my
comments.  (If his message did in fact go to the whole list, I apologize for
quoting the entire text unnecessarily.)

You may be right that there is really no problem most of the time with the
use or reproduction of copy negatives of photographs (or photographs of other
artifacts) owned by private individuals.  I may be seeing problems where none
in fact exist and I may just be paranoid about lawyers, litigation, and
potentially sticky situations.  As you say, there is seldom any difficulty
over gifts of artifacts to an institution.  Heirs and family members who try
to reclaim past donations generally haven't a legal leg to stand on, and the
I.R.S. frowns upon donations being returned to a donor when a tax deduction
may have been involved.  However, it seems to me that granting a license for
an institution to use photographs of your property is fundamentally different
from donating the object itself.  So again, I'm just wondering whether
long-term lenders have a right to commit their heirs to an agreement.

I've had experience with the families of donors requesting (sometimes
demanding) the return of original photographs which a family member had
donated decades earlier, on the grounds that the artifacts had sentimental or
family significance.  In one case, we did in fact deaccession a photograph
and return it to the family because it was of comparatively little value in
terms of quality (I'm not sure it was a good idea).  Since such requests do
in fact occur, it seems likely that from time to time an heir would want to
terminate an agreement for an institution to use a copy photograph.  Did your
agreements state that the license to use photographs would exist in
perpetuity?  Was there any procedure stipulated to facilitate rescinding the
agreement?

Since historic photographs have come to command big bucks on the market in
recent years, the knowledge that an institution controls reproduction rights
to a particular photograph might tend to lower the sale potential of the
original, so the seller might want to rescind an institution's reproduction
or usage rights to copies of the image.  What happens then?  This is not a
copyright issue, of course, just a question about what are in effect
licensing agreements.

David Haynes's message follows:

<<Well, since David asked and I do have about 30 years' experience with
such a system, I guess I'll add a few thoughts. The Institute of Texan
Cultures was created in 1967 to be the Texas State exhibit at San
Antonio's HemisFair '68. The idea from the get-go was that ITC would own
nothing because no one had any idea what would happen to it after the
fair. So all artifacts were borrowed and all graphics were
photographically copied (in the field) and exhibit prints were made from
the copy negatives. The negatives were catalogued and filed in the
Institute's library. When the exhibit opened the files comprised about
2500 negatives, which had been copied from originals owned by
individuals, government agencies, libraries, archives, and museums all
across the state. Remember, this was way back in the '60s and in those
days it would never occur to an institution to forbid us to copy
something or to charge us a fee. After the fair ITC continued to exist as
a museum/educational facility within the University of Texas system, and
additional copy negatives have been added to the original batch year
after year. The collection now numbers in the tens of thousands. In
addition to obtaining the use of images where it would have been
impossible to acquire originals, building this copy negative collection
brought the vast majority of images important to the history of Texas
together in one location so researchers would not find it necessary to go
out to every little museum (no small consideration in a place the size of
Texas) to do a comprehensive photo search.

 > Quite frankly, this concept of "borrowing" images from private
lenders by
> creating surrogates of them seems so fraught with problems that I
> would hesitate to try it.  I'm not surprised that managing such a
program
> has become cumbersome.

Equally frankly, I don't see what the problems are. The only problems we
experienced were caused by a generally cavalier attitude about paperwork
in the early days. The owner of the original is giving/donating his or
her rights to reproduce the image to the museum. These rights normally
are based on the fact that the owner does, in fact, legally own the
object. Copyright is a whole 'nother thing, but was generally not a
problem for us because most of the stuff we copied was either old enough
to be in the public domain or was never copyrighted. Before 1976
copyrighted objects had to be registered and carry the copyright
statement; recent laws have retroactively confused all this a good bit.

Anyway, the owner gives rights to the institution by signing a document
that describes the image and the specific rights involved (use for a
particular project, any institutional use, use by the public, whatever).
Unless the owner revokes this permission, I don't see why there would
ever be any question of the institution's right to do what the document
says it can do. If the owner dies, so what? Why should the heirs be able
to resend the rights any more than heirs can demand back a properly
transferred artifact?

Long-term museum-lers are well aware of my views on a taxpayer-owned
institution charging reproduction fees for images that it holds in the
public trust so I will not burden y'all once again with that. Suffice it
to say that if the institution charges reproduction fees for any of its
collection it should charge the same fees on all the images that have
come into the collection after the reproduction-fee policy was
established. Material acquired  by donation from owners (whether
originals or copies) before reproduction fees were imposed should
probably not be subject to such fees unless the donor (not an heir) gives
permission. When I left the Institute, no repro fees were being charged.
Currently, fees are charged for the use of two collections of original
negatives that were purchased from their owners; fees are still not
charged for the use of images made from the copy negatives.

All in all I think having a collection of copy negatives is both
beneficial to everyone involved and easy to manage (if, of course,
procedures and paperwork are well thought out and properly used). Happy
trails.  David

David Haynes     [log in to unmask]      San Antonio

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