Copyright for Museums & Galleries 

Author: Naomi Korn
Illustration: Sophie Natta

Introduction

Museums, galleries and other cultural heritage organisations collect, preserve, care for, study and exhibit cultural and scientific objects and specimens for the benefit of society and add depth to the cultural experiences of the public. Their collections are eclectic, numerous and fascinating and may contain a variety of items – including various objects, artworks, letters and photographs – published and unpublished, images and sound recordings. Some cultural heritage organisations are also experimenting with creating and collecting augmented reality, virtual reality, web art and computer generated art works, as well as collecting tweets and other social media outputs. Other cultural heritage organisations, such as the British Library, also regularly archive their own and others’ web pages in order to preserve the digital content of today, which will form the history of tomorrow.

One of the key aims of these organisations is to provide public access to their collections through exhibitions, restricted public photography, public engagement activities, online collections, as well as other activities, events and publications. They seek to stimulate learning, discovery, discussion and debate. Many have incorporated libraries and archives within their collections, whilst some museums will be incorporated within universities, special collections within libraries and archives, and museums forming part of larger organisations, like the museum located within the Royal College of Surgeons. Museums themselves come in all shapes and sizes – ranging from large publicly funded National Museums with several hundred staff to local authority funded museums and small independent museums which may be entirely volunteer run. Even organisations which do not formally have a museum, may have collections of objects, such as the art collection owned by the British Council. Variability of collections and institutional conditions (such as ownership) is demonstrated by Art UK, an online portal to the UK’s public art collections. These collections add to the 2500 museums in the UK, over 1700 of which are accredited, as well as numerous public art galleries and other cultural heritage organisations, such as stately homes and cathedrals.

Accreditation is an important requirement of being a museum today and the status of being an accredited museum (or equivalent cultural heritage organisation) means that these organisations have achieved high standards in their documentation and collections management procedures by complying with the procedures outlined within the UK’s Collections Management Standard – Spectrum .Moreover, accreditation means that these organisations are compliant with relevant legal requirements, such as copyright and data protection (including the new General Data Protection Regulations, GDPR). Whilst rights management is not a primary procedure, Spectrum does recommend that museums and other cultural organisations have a duty to take account of and follow all current rights legislation in their use of their collection items, works on loan and third party content. This will include their reproduction activities. 

Why is copyright an important issue to museums, galleries and other cultural heritage organisations?

The relationship between museums and copyright can at times be complicated and requires high levels of knowledge and understanding. This is because there are a number of reasons why those working in these organisations, such as staff, trustees, students, volunteers, interns and contractors interact with copyright. For a start, it is likely that many objects in museum collections, objects on loan, as well as other content that may be reproduced as part of their core activities will still be in copyright. Even museums who have legal title to collection items cannot freely reproduce these items unless they have authorisation from the rights holders. Secondly, the ownership of the copyright in content created by non-staff, such as volunteers, students, those commissioned, contractors and interns will belong to these individuals. Subsequently, museums and other cultural heritage organisations need to understand what rights arise and how to manage them. Finally, understanding copyright, and other types of Intellectual Property rights, such as trade marks, provide the means for cultural heritage organisations to protect and potentially generate income from items in their collections, including activities such as image licensing, brand licensing and product development.

Museum copying activities

Museums reproduce their collections in a multitude of ways. This can include the reproduction of items within exhibition spaces, online, on billboard posters to promote their latest exhibition, the creation of a set of postcards to sell in their shop, the use of a reproduction as a background to their visitor floor plan. The majority of these activities will require consideration of the copyright in the items and securing the relevant permissions. The cross-departmental use of copyright works across a museum will require all staff to have a basic understanding and awareness of rights management.

Digital photography, scanning and the Internet have made it possible for museums to make their collections accessible to a global audience. Yet it is only with the recent changes to copyright legislation (in 2014) that they have been provided with the ability to legally create digital copies for the purposes of preservation and subsequently, make such copies on dedicated terminals available for walk-in users (see below). Online use, however, still requires permission from rights holders.

Copyright and acquisitions

Spectrum notes that it is good practice that, where possible, rights are negotiated at the point of acquisition of an item into a museum collection (if the person from whom the work is acquired is the rights holder). As many objects in copyright are permanently acquired by museums, this is both a sensible way to optimise the good will of the copyright owner, as well as use precious museum resources to broker the best deal for the museum. The aim of these early discussions about copyright would ideally result in an assignment of copyright or basic permissions, such as inclusion in published online catalogues, non-commercial promotional material (online & offline), and use for press, marketing, social media use and digital engagement. Museums are strongly advised to negotiate such agreements in writing, and to store negotiated agreements in accordance with record and electronic record management policies. Benefits of taking an early stance in copyright discussions include the exploration of any possible leads regarding copyright ownership in instances where the person from whom the work is being acquired is not the rights holder, as well as avoiding adding to the already increasing mountain of works which require permissions to be sought retrospectively.

Of course, it is not always possible or indeed practical to try and sort out copyright at the point of acquisition if negotiations are already long drawn out and/or delicate, the items being acquired may themselves be based on third party art works, and/or the items are of contemporary relevance, such as recent protest-related materials which have been left behind and subsequently collected by the museum. In these instances, whilst the aspiration may be to deal with copyright at the point of acquisition, a practical and pragmatic approach may determine otherwise. Museums who are faced with this predicament, will often build such eventualities into their collecting policies and collection committee discussions, so that issues are fully discussed and documented, outlining key risks and opportunities for the museum.

Copyright and loans

Loan items present a double rights clearance whammy for museums. Permission will be required from lenders of any items, as well as from any copyright holders if the items are still in copyright and the lenders are not the copyright holders. This is not unusual and means that museums need to co-ordinate different requirements for re-use (including consent for public photography) across the organisation, to avoid unnecessarily duplication of rights clearance efforts and to assist in cost savings. Some museums, such as the Imperial War Museum (IWM), use a “one touch approach” when embarking on exhibitions which include loan items. In this case, IWM starts the process by co-ordinating reuse requirements associated with loan items cross-departmentally, supported by unified rights clearance activities. The aim of this approach is to increase efficiency in rights clearance when multiple departments may require the use of the same image and present opportunities for bulk buying of permissions from any charging rights holders and/or agencies.

Rights clearances associated with exhibitions are a vital component of curatorial work and the time and money spent on copyright can impact substantially on returns from ticket sales. Indeed, in periods of austerity when museums, like all other publicly funded organisations, need to make less go further, they will need to take these types of copyright costs into account when planning exhibition programmes and the selection of items. Only by understanding that copyright is a business critical issue, requiring carefully evaluation of the costs, risks and benefits of using and reproducing in-copyright items, can museums create exciting exhibitions which at the very least cover the huge costs of putting them on.

Copyright and using third party content

Using additional content to substantiate public engagement with collection items and/or loan works is commonplace amongst museums. Content is often sourced from commercial picture libraries such as Getty, the Bridgeman Art Library, online sites and/or other museums. The increasing range of third party content that museums themselves are making available under Creative Commons Licences provides a rich wealth of re-usable content that they and others can reuse. This is much as a result of digitisation projects funded by the Heritage Lottery Fund or the Arts Council England/V&A Purchase Grant requiring recipients of public money, to make such images available online under these terms.

However, not all material sourced online or indeed from other sources, is clearly labelled for reuse, nor provided from an authoritative source. In these instances, it is important that museums take responsibility for clearing any third party rights, recording such permissions in such a way that this information is accessible, clearly reflecting licensing terms and in particular the duration of permissions if these have not be negotiated in perpetuity. Risks of breaching copyright are as much about not negotiating permissions, as letting permissions lapse due to ineffective methods of retaining and sharing licence information. In this way, copyright is much about legal compliance, as it is about knowledge management, information management and contract management.

Copyright and commissions

Commissions can take many forms. A museum may commission photography of a new exhibition or a new logo design; an art gallery may commission a new artwork or new digital interpretive content; or a library may commission a film made about its newly acquired manuscript. However, if the creator of the commission is not a member of staff, the commissioned party will automatically own the copyright in the resulting work. This means that a museum will need to decide whether it wants to own the copyright itself in the commission, or whether a licence will be satisfactory. This is not as straightforward as it may seem. Art commissions, for example, may be for the duration of an exhibition or to enable a new work to be added to the collection. Deciding what rights are appropriate to ask for from the commissioned party, will be dependent on whether they are renowned in their field, their creative input into the work and whether the museum will decide to add the resulting work to its permanent collection. Museums should reflect whether they need to ask for a ‘waiver of moral rights‘ which they might do ordinarily with freelancers, as this removes the relationship of the artist from the artwork that they have made. In these circumstances, requesting consent to change or alter an image of the work can often be more appropriate and cause the artist less alarm.

Copyright and volunteers

Museums rely on volunteers and their help. However, the copyright in any content that volunteers create on behalf of the museum will not belong to the museum, which will restrict enormously a museum’s ability to reuse such content. Ideally museums who work with volunteers should seek a transfer copyright to the museum via a deed of copyright assignment, which is an appropriate device to prevent a possible employee/employer relationship. Like any assignment of copyright, this will not be possible unless the museum is a legally incorporated body, such as a charitable trust. Museums which are unincorporated and run by volunteer and/or trustees, will need to discuss a mechanism whereby they grant each other permissions to reproduce any content that is created, or consider perhaps appointing a third party who can hold any copyright for them on their behalf.

Copyright, freelancers and contractors

Unlike the copyright in any work created by museum staff automatically belonging to the museum as the employer, copyright in works created for the museum by freelancers and contractors will belong to the freelancer or contractor. Similar to the need to protect the museum’s interests when working with commissioned parties, it will also be prudent to underlie the relationship with a legally binding contract setting out clearly terms and conditions, including an assignment of copyright. Contrary to commissioned works however, it would be advisable to request a waiver of moral rights particularly if the resulting content is bespoke for the museum, confidential, business sensitive or created under the sole guidance of the museum with minimal creative input from the freelancer or contractor.

Obviously, museums are not always able to use their own contracts with freelancers or contractors. This may be because they do not have templates readily available and/or the contractor may insist on using their own contracts. In such cases, museums take should review these for appropriate measures to safeguard their rights and interests.

Making money from copyright and long term sustainability

Reduction in public funding means that museums must plan ahead to support their long-term sustainability.  Apart from corporate hire activities, identifying and exploiting IP (Intellectual Property) assets, such as copyright and trade marks, provide important opportunities to add to the portfolio of resilience related activities.

Copyright licensing activities include image-licensing activities managed internally or through a subsidiary such Bridgeman Images or Art UK which can help take the pressure off staff whilst still providing an opportunity for income. The shop and/or the museum website are prime locations for the sale of high quality prints. To take full advantage of exploiting their own created content, museums must ensure they are aware of what rights belong to them and which do not.

Brand licensing offers museums an alternative opportunity to license out the use of their corporate logo in return for a fixed fee and/or profit share. Large Museums, such as the V&A and Tate, have well established brand licensing activities, evidenced by their well stocked shops including a wide range of their own quality branded products. Brand licensing is not just restricted to National Museums, and other smaller local authority and/or independent museums are also experimenting with different partners and products.

Museums, exceptions to copyright and risk

Within copyright law there are a number of fair dealing exceptions to copyright that specifically benefit museums. These exceptions to copyright are crucial to the work of museums by providing legitimacy for the legal use of third party copyright works in certain situations without the need to seek permission. Changes to the copyright legislation in 2014, have resulted in a more progressive regime for users, cultural heritage and educational organisations, which is now better suited to support activities in a contemporary museum.

An outline of the key exceptions to copyright of most benefit to museums is provided below. However, because many of these exceptions are untested in law, as well as including a ‘fair dealing’ caveat, museums may need a healthy appetite for risk to fully benefit from them.

Fair Dealing for non-commercial research or private study

This exception applies to all copyright works. It means that copying of in-copyright items is permitted as long as it is within ‘fair dealing’ and for non-commercial purposes. However, the emphasis is on the nature/purpose of the copying itself and not the nature of the person/organisation carrying out the copying. The non-commercial research or private study exception includes a non-contractual override provision, whereby contracts restricting the licensee from benefitting from the exception are unenforceable.

Museums are able to support public access and re-use of copyright works under this exception. Examples include permissive public photography policies, and enabling the public use of photocopiers, scanners and sometimes their own equipment to make copies of in-copyright works. When a user is copying for this purpose, it is strongly advisable that museums display a copyright notice, setting out the parameters of the copying.

The marketing and press teams of museums will need to purchase a Copyright Licensing Agency (CLA) Licence and a Media Access Licence provided by the Newspaper Licensing Agency (NLA) to enable them to make copies of published text based works for organisational research purposes, which is beyond the scope of this fair dealing provision.

You can find more information about the exception for research and private study here.

Fair Dealing for the purposes criticism and review, and for the purposes of quotation

A copy of a work can be used by museums for the purposes of criticism, review or quotation. Examples include reproduction of images of art works in corporate plans, conference slides and evening talks.

A lawful extract of a work can also be made for the same purposes. In this case, the work must be ‘fair dealing’, and sufficiently acknowledged, as well as having lawfully been made available to the public. This exception cannot be overridden with any contract. Examples of use of this exception by museums include extracts of text reproduced in exhibition panels and books, clips of films and excerpts of sound recordings within exhibition spaces.

You can find more information about the exceptions for quotation, criticism and review here.

Fair Dealing for the purposes of current news reporting

Press and marketing teams working within museums will largely use this exception for the reproduction of certain works within newsworthy contexts. Works can be freely copied under this exception as long as they are sufficiently acknowledged. This does not extend to the copying and distributing of press articles, for which a licence is required or photographs.

You can find more information about the exception for news reporting here.

Fair Dealing for the purposes of data or text mining

Text and data mining is the electronic analysis of large amounts of copyright works to identify patterns and other interesting information that would not be possible through human reading. This exception is permitted for the sole purpose of non-commercial research, as long as the person carrying it out has lawful access to the work and the copy is accompanied by sufficient acknowledgement. This exception includes a non-contractual override provision, so contracts restricting the licensee from benefitting from this exception are not enforceable.

The likely beneficiaries of this exception in a museum context are likely to be museum archivists and curators, who may wish to analyse a large corpus of copyright material, such as text, recordings, images or films, to ascertain patterns, trends, etc.

You can find more information about the exception for text and data mining here.

Fair Dealing for the purposes of illustration for instruction purposes

A copy of a copyright work can be used for the sole purpose of illustration for instruction as long as the use is for a non-commercial purpose, the person making the copy is giving or receiving instruction and the copy is accompanied by a sufficient acknowledgement. This could include setting or answering exam questions.

This exception includes a non-contractual override provision, so contracts restricting the licensee from benefitting from this exception are not enforceable.

Educational activities in museums, such as facilitated class room teaching, in-house training and PhD supervision, will all benefit from this exception.

You can find more information about the exception for the purposes of illustration for instruction and other educational exceptions here.

Fair Dealing for the purposes of parody, caricature and pastiche

A fair dealing copy of a copyright work can be used for the purposes of parody, caricature and pastiche. Like many of the other exceptions, contracts restricting the licensee from benefitting from this exception are not enforceable.

Uses of this exception in a museum context include creative approaches to interpretation, such as exhibition panels using existing art works, as well as the display of work which themselves may be based on, or incorporate other works in copyright.

You can find more information about the exception for parody, caricature and pastiche here.

Making works available on dedicated terminals

A copy of a work can be made available to individual members of the public via a dedicated terminal on the premises of libraries, archives, museums, galleries and educational establishments. This is permissible as long as the work has been lawfully acquired by the institution, it is for the public’s research or private study and there are not any licensing/purchase terms which prevent this.

Museums are already experimenting with touch screen terminals, audio and/or film booths, and single use terminals to enable public one-on-one access to digital images of works in their collections, under this exception.

Copying for preservation or replacement

Under UK Copyright Law, libraries, archives and museums may copy material in their own permanent collection for the purposes of preservation. This exception covers all types of copyright work as long as they are part of the institution’s permanent collection, not publicly accessible or available on loan to library or archive users. Some examples of the types of copying that this exception permits are:

• The digitisation of oral histories recorded on reel to reel tape and backed up in multiple locations
• The digitisation of a fragile pamphlet collection
• Transferring obsolete video formats, such as Betamax, to up-to-date digital file formats
• If it is not reasonably practical to purchase a copy of an item in a collection or if a copy is lost, destroyed or damaged

This exception cannot be overridden by a contract.

You can find more information about the exception for preservation purposes here.

Providing access to disabled users

New legislation now provides specific exceptions permitting copying for, or by users with a disability. Educational establishments and not for profit organisations, like may copy the whole part of an accessible work for a disabled user. This exception applies if:

• The organisation has lawfully obtained a copy of the work which the user is unable to access
• An accessible copy of the work is not commercially available or is not suitable
• The accessible copy is for the user’s personal use

Under this exception, museums have already created tactile versions of items in their collection for visually impaired audiences, subtitled archival films and colour adjusted images of art works for dyslexic users.

You can find more information about the exceptions for people with disabilities here.

Other copyright-related issues for museums

There are a number of other copyright-related issues for museums which add to the rich tapestry of rights-related issues which museums need to handle.

Orphan works and risk management

Orphan Works are any creative works, such diaries, photographs, films or a piece of music, where one or more of the rightsholders is either unknown or cannot be found. Various projects and initiatives have estimated that there are millions of orphan works in the public sector, the earliest account of which suggested a figure of 50 million orphan works, which was outlined in the report ‘In From the Cold’. Museums normally carry out reasonable searches to try and locate rights holders, recording such efforts undertaken on their internal collection management systems. However, not all museums have been comfortable with the lack of legal certainty in using a risk management approach associated with any subsequent usage and in response to the extent of the problem of orphan works, the UK has implemented two possible solutions: the EU Orphan Works Exception and the UK’s Orphan Works Licensing Scheme.

EU Orphan Works Exception

This non-commercial exception, launched in 2014, allows museums and other cultural and heritage organisations to reproduce their orphan works by digitising them and making them available online, by carrying out self-certified reasonable searches and then completing the necessary fields on the EU IPO Orphan Works Database. The exception is limited because it does not include standalone artistic works such as a photograph, although it does include text based works, audio visual works and embedded orphan artistic works. The take up of the exception has been moderate amongst UK museums, largely due to the clunky nature of the user-interface, as well as the extra admin required to complete the necessary fields on the database.

For authoritative research on orphan works and a tool that can help you carry out a diligent search under the EU Orphan Works Exception, visit http://diligentsearch.eu/

UK Orphan Works Licensing Scheme

At the same time that the UK enabled use of orphan works under the EU Orphan Works exception, the UK Government launched its own Orphan Works Licensing Scheme. The intention of this scheme was to provide a means for the use of all types of orphan works for any purpose by a wide variety of users, by issuing a UK-based licence for up to 7 years. Usage of the licence by museums has been to date extremely low due to the high admin costs of the scheme, its limited coverage, and the relative lack of benefit in relation to costs and proportionate risks.

Risk Management

The lack of viable orphan works solutions mean that many will take a risk managed approach in, at the very least, providing online access to the millions of orphan works owned by UK museum. Using this approach an institution still attempts to locate and contact the rightsholder (see the Orphan Works checklist below for advice on how to determine an Orphan Work) but once it has been established that the object is an Orphan Work a risk assessment can be performed on how the reproduction is going to be used. If there is a general low risk the institution may decide to go ahead and reproduce the work with a public statement of intent should the rights holder come forward.

A low risk example might be a museum who wants to publish images of their Orphan Works in their online catalogue, once they have established that the works are orphaned. This type of risk is often mitigated by documented searches made to trace rights holders, publishing a public take down policy for any copyright holder who comes forward and objects to the use of the reproduction, a clear copyright notice and disclaimer, and staff training. The types of places that museums look in order to locate rights holders include:

• Image Recognition Software – free sites such as Tin Eye and Advanced Google Search;
• Acknowledgements and notes of published works/exhibition catalogues about the author;
• Searching the Internet;
• Checking the WATCH file on the Internet for information about artists and writers (entered through http://www.lib.utexas.edu/hrc/aboutwatch.html);
• Liaising with organisations which might hold works by that artist/creator and contact them to see whether they can provide any information about the rights holder;
• Checking with the British Library (bl.uk). To find the copyright holder of a book (still in copyright) published by a now defunct publishing house, send a query to the British Library through their website (http://www.bl.uk/index.html);
• DACS (Design and Artists Copyright Society, dacs.co.uk), Publishers Association (www.publishers.org.uk), ALCS (Rights Management Society for Authors, http://www.alcs.co.uk);
• Establishing whether the work has been lent/bequeathed/given by the rights holder. If so, can the person who gave the material provide any contact information for the rights holder?; 
• Online directory enquiries;
• Placing an advert in a relevant trade journal or magazine in order to trace the rightsholder.

Social media, museums and the future

With the rise of social media platforms such as Facebook, Twitter, and Instagram, and the proliferation of smartphones with the ability to take and share an image in just a couple of presses, museums have taken advantage of the opportunity to use social media platforms to connect to new audiences. Marketing teams have relished the opportunities that such connectivity has offered them. Tweet feeds, for example, have underpinned the launch of new exhibitions, initiatives, as well as connecting audiences to collection items.

The terms and conditions of these sites, however, pose copyright issues for museums, galleries and other heritage organisations. Posting material on these platforms will require the uploader to clear any third party rights. Plus they will need to weigh up the risks of posting materials that they may own the rights to and the benefits that they get, versus the far reaching permissions that they grant to the platform providers and users of the site, to reuse the content they have posted. This is often overlooked by museums, galleries and other heritage organisations. This forms part of a much broader narrative about access to cultural heritage assets, and the interplay between marketing, monetising and free access. Copyright is at the heart of everything museums and galleries do. The decisions cultural heritage organisations make about their collections, how they provide access and to whom, need to be viewed through the lens of both operational impact, as well as strategic decision making about risk, access and responsibility.

Naomi Korn is grateful to John Peel for his contributions to this article as part of his involvement in the NKCC Mentoring Scheme www.naomikorn.com/blog

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