 AIC, go ahead Susan. Hi everyone, welcome today. I have a few slides as usual. You will note the new branding for the AIC and FAIC. And that's how we're going to look. And if you have, we have a whole lot of handouts today. You can download them from the handouts materials down below the chat box. And also, if you have any questions, I'll collect them. So put them in the chat box. I'll make sure they get answered at the end. And I'm sorry. And if you want to keep informed with what's going on with Connecting to Collections Care, you can, excuse me, join the C2C Announce List. Or you can like us on Facebook or follow us on Twitter. The Announce List has maybe one or two messages a month at most. And that's a really good way to keep track of what we're doing. If you have questions concerning the care of your collections, you can join the Connecting to Collections Care community. And the instructions of how to do that are on our website, excuse me, I'm losing my voice. And if you have suggestions or problems, feel free to contact me anytime this is my email address. We have coming up in a few weeks a webinar on Planning for National Disasters in Botanical Collections. And that could mean a historic garden. It could mean the iconic tree outside your museum. It could mean your botanical garden. It's any place where you have live plants that you need to take care of. And then, excuse me, at the end of March and on into June, we have a course, Planning Your Reorg Project. Reorg is a program that was started by UCRON. This is being co-hosted with the Canadian Conservation Institute. It's the first time they've taught this program in the U.S. It's a fabulous program for working on storage in small collections. And now I'm going to turn this over to Ann Young, who's our speaker today. And take it away. Thank you, Susan. You might for keeping us all going technologically. As you've never known, my name is Ann Young. I'm the general manager of another project that is in close museum of art at UCRON. If I'm saying here, I am not your lawyer, nor do I play one on TV. Nothing in today's webinar is intended. This is a quick and good advice. And for any... Please, Susan. Here we go. I'm sorry. So I'm going to touch on one of the things here. Hopefully, there are supposed to be questions that you might have. Can we generate a copy right at the end of this video? Before we delve right into the copyright, it's important to have a copyright. But one aspect of the property is law or IP. And collections may intersect with... I don't know if these are different types of IP, but copyright, by far, is form of IP that cultural collections would intersect at the absolute most. So what is right? And I have it here. For those of you who are joining us from outside of the state association, those things today talk about pop law in the United States. So while some of the practices will be nuances of copyright law will overlap from country to country, that it is very important to note that you will also have variances between the countries and always consult your own districts and districts. So in the United States, copyright is a form of legal protection provided by the laws of the United States under Title 17 of the U.S. Code to protect original works of authorship. And while the copyright code specifically says authorship, this could be used to refer to an author, a creator, an artist, anyone who is specifically speaking and creating something. And it is important that it has to be fixed in a tangible medium of expression. And this protection is available to both published and unpublished works. Copyrightable works can include intellectual properties such as websites, computer code, software, databases, literary works, music, lyrics, dramatic works, paintings, graphic and sculptural works, motion pictures, any number of things. Just as important as what is copyrightable is what is not copyrightable. These will be ideas, facts, and in the United States, federal government works. In other countries, we will have cases where federal works are still eligible for copyright. And in individual states, state government works may still be eligible for copyright. So examples of things not copyrightable will be the order in your phone book, which is essentially just a listing of facts, of names, contact information. And in most jurisdictions, copyright arises upon fixation once something is created. It does not need to be registered. So for example, the lovely drawing of the Feds pigeon that you see here done by my oldest son when he was five has copyright. It's his original unique expression. We could register this with the U.S. Copyright Office if we wanted to, but that registration is not a requirement of copyright protection. But that copyright in this work created even by a five-year-old is automatic upon creation. Now copyright is a set of rights. And these are granted to the author or creator of the original work or to their assignee. So perhaps to an estate, another family member. And it's for a limited time period in exchange for the eventual public disclosure of their work. So when that work moves into the public domain. Copyright owners can license, permanently transfer, or assign any and all of their rights to others. And the copyright owners have the exclusive statutory right to exercise control over copyright and other exploitation of the works for a specific amount of time. And again, once that period of time has passed, then the work enters the public domain. The copyright term duration is what details when works are under copyright or when they have moved into the public domain. Copyright does not last indefinitely. Thank goodness. But applies just to that specific time. And once that term has expired and the work is moved into the public domain, it is free to be used, built upon, remixed upon by the public without having to seek any further permission. I will note that these statements here, these are very broad statements and to always remember that there are always going to be some exceptions to these. But broadly, it moves to works in the United States created before 1923 to be in the public domain. After 1923, the works may or may not be in the public domain depending on compliance with various registrations and renewal and publication requirements of the copyright code at different times. Further to looking at the copyright duration, you have to look at publication and registration and where these registrations and re-registrations were required by the copyright law. The work was never published and the author died prior to 1949. This term duration has likely expired and the work is in the public domain. For unidentifiable authors, you are almost to works created before 1893. In the United States, the copyright term broadly for an individual author, creator or artist left to the life of that individual plus 70 years. Or in the case of corporate authors, which is an institution that you would work for, for 195 years. And to further add another layer onto this, 120 years from the date of creation, if the work is anonymous or where the death date of the creator is unknown. A few additional things to consider when you're looking into the copyright term duration. Look at the type of work. Is it architectural? Is it a painting? Is it a book? Was it published or not? Created by an individual or a corporation? And the country's origination. It is important to note that while you have to look at that country of origination, where there might be different copyright terms and where that creator lived and died. If you're using the work in the United States and potentially looking at either licensing or fair use of a work, that if something would proceed into a type of a lawsuit or other litigation in the United States, most likely U.S. law would apply. And that's what you want to focus on. Now we'll turn our attention a little bit and look at our dear friend, the public domain. So the public domain will include works that are no longer covered by copyright, where copyright has been forfeited, or works that just never could have been copyrighted to begin with such a federal government works. It also works in the public domain. Maybe those will have been dedicated by the creator to the public domain, such as through the use of the CC0 or public domain dedication within Creative Commons licensing. And I can't talk about the public domain without noting my favorite holiday of the year. Some of you may know it as New Year's Day. But January 1st is lovingly Public Domain Day. For the first day of each calendar year, the new group of works with copyright expiring moves into the public domain and are freely available for anyone to use them for anything. Reiterations that's no copyright to federal government works in the United States, and those are in the public domain. And an issue that is eminently important for many cultural institutions today is looking at this concept of the slatish copy. So many of us with our collections, creating photographs and digital surrogates of the works in our collections. These things are 2D works originally, some are three-dimensional. Under U.S. copyright laws, and based upon the case of Bridgeman v. Corral in 1999, in the United States, it is indeed, at least based within the Second Circuit Court ruling, accurate two-dimensional reproductions of original works do not receive a new copyright. So this music is not claiming a copyright to the photograph of a painting in our collection. So these two-dimensional works are in the digital surrogate. There may still be the opportunity that an accurate reproduction of an originally three-dimensional work might have its own copyright, but by and large, accurate 2D reproductions are deemed to be a slavish copy by the courts. So there is not enough originality and creativity to warrant a new copyright. A few of you may have heard of this. The Copyright Term Extension Act from 1998, which meant that for the last 20 years in the United States, we did not have any works entering into the public domain. This is the act that extended the copyright term of life as a creator to life plus 70 years instead of being life plus 50 years. This act also retroactively applied to works that should have entered the public domain, but were pulled back under copyright. Thankfully, as of January 1st of this year, the United States once again is among the countries in the world with works annually entering into the public domain. And I just want to point out the DMCA as well quickly. So this is a liability exemption for Internet service providers in the cases of user infringement. So this is particularly with cases of where services, YouTube, Facebook, our social media platforms that we intersect with, and other service providers will be able to utilize DMCA around allegations of copyright infringement being applicable to them. So institutions may see a liability of DMCA as well with looking at placing images of our collections online, contributing to resources potentially such as DPLA or Art Store, and looking at how these different service providers aggregate content. So just one to be aware of. I'm not going to delve too deeply into that today. Next I want to turn and talk a little bit about work and works. So what is an work and work? An work and work is a copyrighted work, but it's where its creator or the rights holder is either unknown, or it could be where you know who created the work, but you can't locate them. You can't locate their descendants or in a state and have no way to actually contact anyone for licensing. Equally important is what is not an orphan work. Copyrighted works for which rights holders are known, but ownership is disputed, and works in the public domain. A number of ways that works can become orphaned. And this is often where we end up finding that the creator or author of the work or their subsequent estate or rights holder in the work themselves become separated. This can happen where descendants of an artist don't even realize that copyright has transferred to them through lines of descendancy. Could be from a creator using a number of plumes and not being able to track them back to the creator themselves. Changes in record keeping and changes in corporate ownership where different corporations will be bought out by someone else, and records of an electoral property may or may not transfer with the sale of the company itself, and works can thereby become orphaned. It is important to note that just because a work becomes an orphan, that doesn't change its legal copyright status. And the term of protection remains unchanged. Unlike property interests, copyright and other intellectual property rights cannot be lost, mislaid, or abandoned. And just because a work is orphaned, it does not immediately become part of the public domain. Copyright does not vest in another person that the creator is unknown and cannot be found. So if somebody comes out of the woods, there needs to be a lot of fact-tracking determination to find out if they truly are a potential right holder of an orphan work. Next, I'm going to turn to talking about some exceptions and exemptions within U.S. copyright law. I'm going to talk about a few of these across different areas in their applicability to museums, libraries, galleries, and archives. First sale, the public display exception. And this is really what comes down to that this is what allows museums and galleries and libraries and all of our cultural institutions to be able to actually exhibit and display works in our collections without having to seek a copyright permission or license every time we want to put those works on display. Can we imagine the headaches aside from loan agreements if we had to also seek those permissions for just uses of our own collections on a regular basis? The classroom use exemption. This is where it comes back to the idea of teaching and using our collections on a daily basis and how those copies and uses are put into place. Parallel with this as well, looking at the Teach Act. And this allows for distance education, MOOCs, and any utilization of those works and how copyrighted works can be utilized within them. I'm going to spend a few slides here to actually talk about some of the various library exceptions under Section 108 of the U.S. Copyright Code. And a big part of why I want to actually focus on Section 108 is that this is actually an area that the U.S. Copyright Office has been looking at very closely over the last couple of years and has been pending changes to Section 108 to formally add museums under this exception. So those of you coming from museums, stay tuned. Hopefully, some of these exceptions in Section 108 will be expanded to not just include activities of libraries and archives, but to also include museums. So this is something that currently for libraries and archives you must be open to the public and are available to be researched. And where this does not apply currently to museums is that a museum may have a library and or an archive within their institution. The museum does not fall under Section 108 just for the sake that it happens to have a library and an archive, only specifically would the library and the archive be covered by Section 108. So many works currently do not qualify. But Section 108 as it currently stands for libraries and archives is a wonderful resource. It is what allows libraries and archives to create, to distribute multiple copies, to lend, to have reproduction equipment available, copyright machines available for patrons to utilize as we will always see the notice by any of the copy machines in a library as well. It allows libraries to share copies across libraries or things like your inner library loan. And in such aggregated quantities that libraries are not using ILL as a substitute for actually purchasing the works themselves for their own collection or for subscribing to a journal themselves. The ability under Section 108 for libraries to create preservation, security or replacement copies currently limited to three copies for those purposes would be immensely helpful to those in the museum world, particularly for those of us starting to deal more and more with time-based media and materials and other foreign digital materials that currently we have no exception in the copyright law that allows us to create copies of these works for the purposes of preservation or security or replacement. But right now the only way that a museum is able to create a copy for one of those purposes is through some sort of a contract with that copyright holder to begin with. Next, we'll turn our attention to talking about fair use, one of the exceptions that many of you are more familiar with in the copyright code. The fair use of a copyrighted work including such use by reproduction in copies or phone records or by any other news specified by that section for purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research. And this is the important part, is not an infringement of copyright. It says so right there in the code. Yet despite it saying right there in the code that it is not an infringement, when do we use it? How can we use it? So looking at things of where we can have commentary, parity, limited educational uses, non-commercial. There may be even be cases where something is more considered more of a commercial use but could still potentially also be a fair use. Determining fair use is broadly said under what is known as the four factor test. So you look at the purpose and character of the use, the original nature of the copyrighted use, the amount of substantiality of the work used and the effect of the use upon the work. It is important to note that while there are these four factors that courts will look to in fair use cases that in order to pass a fair use you do not have to meet all four factors. You do not even have to meet three out of the four. It is how each is weighed and looked at. They are assessed individually and then weighed together to make a fair use determination. And more recently, their judge LeBalls introduced what is now almost considered a fifth factor, the transformative use. Or as my seven-year-old likes to call it, the transformer use. I think I almost like the idea of that we can take something and transform it better. But this concept of transformative is that you have taken something and used added to it, that there is something new and value added and that you have not used more than was necessary at the original work to achieve that case. Where this really comes out is in the case of Roger Z. Coon. So in this case, you see the image here that Jeff Coon has created a sculpture based on this photograph that he has seen by rockers. And Coon basically took the entire photograph to create his sculpture. And of course, this was not a fair use. You did not transform it enough. You did not change it enough. You really took almost verbatim that even just changing it from being a two-dimensional photograph to a three-dimensional sculpture, that wasn't enough, it didn't transform it enough. Transformative use comes in a lot. We start looking at cases of whole procreation art. Here you have examples from Carrie B. Prince. The cases in 2011 and 2013 did Prince transform these enough to make them different? Some of them, yes. Some of them, no. It was an interesting case where not all of the work in the case were deemed to be a fair use. Memory serves, I believe it was five, where women are not considered a fair use. An additional point for the GLAM sector and any cultural institution to look to from these cases was the potential liability of display and distribution that the gallery displaying Prince's work was also sued for copyright infringement by Carrie in this case. So something for museums to think about that when we are looking at displaying works by appropriation artists, what type of risk and liability are we also potentially taking on by displaying those works? We're stepping a little outside of copyright specifically. We're talking briefly about privacy and publicity and where these intersect with uses of copyrighted materials. So the right of privacy, and some of you may be more familiar with this, especially recently with all of the recent news in the last year coming out of the EU with the general data protection regulation with the GDPR that looking at how data and the right to privacy is protected and not just looking at someone's likeness or their voice but also extending to data. The simplest way to think of the right of privacy is quite simply the right to be left alone. There's a phrase that was coined by then attorney Samuel Warren and eventually Justice Brandeis in an 1890 Harvard Law Review. And the right to privacy is summed up in four points. An unreasonable intrusion on personal solid public disclosure of true but embarrassing private facts, fall slides, or the appropriation of someone's name and likeness. And coinciding with the right of privacy is the right of publicity. And this right of publicity is the right to control the commercial exploitation of a person's name, likeness, or voice. In the United States, the right of publicity is governed by state law. It is not a federal law. And depending on the state, the right of publicity may or may not extend beyond the person's death. While right of privacy will end with a person's death for sure, the right of publicity, particularly with a public figure, may extend beyond their life. So VARA, the Visual Artists' Rights Act. In the United States, VARA is the closest that we get to the European and other countries' concepts of moral rights. But it is not exactly moral rights to the same concept and to the same degree that you see in the EU and in the UK. VARA grants artists the right to claim authorship of their work. They can also prevent the use of their name in the event of a distortion or mutilation of work, which also means that the artist has the right, not only can they claim authorship, but the artist now recently disavowing their work and now saying, nope, that is no longer my work. Most recently this actually came out in a Richard Prince, he comes up a lot in the copyright cases, but Richard Prince recently disavowed a photograph from his Instagram series that was a photograph of Ivanka Trump, that Ivanka Trump owns, and she was talking about owning this photograph. And Richard Prince came out and said that it is actually not a Richard Prince photograph, despite her having bought it from his gallery representation. And so a case where the artist is coming in now is disavowing, but they created that work to begin with. VARA also prevents intentional distortion, mutilation, or modification of the artist's work, and also prevents the destruction of that work. So before VARA, or essentially pre-1990s, the owners, not the artists, had control of the work, which means that in 1989 Richard Sera had no recourse available to him when tilted art was cut into three pieces and dismantled. After VARA, or post-1990s, now the artists, not the owners, had complete control of their work, which means that in 2017 when Spearler's Girl was placed to face the charging bull, that claims of intent in changing the message that it had somehow mutilated his work or hurt his reputation, that he could bring that suit against Kristen Visball. And this is a work that continues to face litigation. And recently, Visball now has been, had legal action brought against her, of all things by the companies that originally commissioned Spearler's Girl from her. And I will just point out as a word of caution to always look at your contracts and licenses and look at how the rights and ownership are outlined. This was a case where, although Visball created the work, it's hard to not delve completely into any of the contracts and what is available about the case, but she's been selling reproductions in various versions of the work. And the company is saying that she doesn't hold the intellectual property she has, that they hold the rights to that and she can't be creating these reproductions of her own work. Again, it goes back to an interpretation and being really careful of what your contract language actually says. Now I'm going to put you all on the spot a little bit for a little bit of a quiz and see how much you've been paying attention. For a work to be copyrightable, it has multiple requirements, including, you see originality requirements, it sticks in tangible medium, it's a source of consumer confusion, and that its subject matter is copyrightable. The answer may be more than one. Okay, most of you did very well. Excellent job. So for a work to be copyrighted, it has to be A, B, and D. Consumer confusion is something that actually comes in under trademark law in a different form of intellectual property. Number two, what are the exclusive rights of the copyright owner? To distribute the work in copies to the public, to display the work publicly, prepare derivative work, reproduce the work in copies, perform the work publicly, or all of the above. All of the above. Section 107 states that for the purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research is not an infringement of copyright. I don't even need to read through these. You guys got that one. Well done. Very good. That's right. Last quiz question right here for you. Does the United States have a statute version of Europe's moral rights laws? Remember the disclaimer that I gave at the beginning when I first started talking about VARA? It's a little bit of a trick question. So while the Visual Artists' Rights Act does provide some elements of moral rights protection to artists in the United States, it is not exactly a statutory version of Europe's moral rights laws. It gets close, but it does not actually exist as a full moral rights provision. All right. So now I'm going to delve a little bit into a little bit more practical application of some of the copyright statute and how we put this into practical application and dealing with copyright on a daily basis, working in cultural institutions. So first, determining the right status. And for better or for worse, because of all of the things that we talk about and things just like the term extension act and how copyright laws changed and the terms have extended, there are so many different exemptions and ways in how long copyright can last. But we are all very lucky because a wonderful man named Peter Hurdle annually updates his copyright term in the public domain in the United States chart at Cornell. So a little bit here. Available online through Cornell's Copyright Information Center. Their entire website is a wonderful resource. I would highly recommend spending some time there and looking at what they have, but in particular look at the copyright term in the public domain in the United States chart. This chart will take you through a variety of different types of works. So works never published, never registered, first published in the United States. Architectural works really covers the gambit of the different types of works, audio-visual works, music, films. It really has, so you can start breaking down and looking through all of these, looking at was it created in 1923 after 1923? Where does it fall with the 120-year mark for corporate authorship and help walk through that chart? Now I'm going to go through some really, really super broad strokes that most of us working in cultural institutions, we do not have the luxury of having the staff for the time to go through and do copyright determination analysis on a step, on an item level basis and take each individual work step-by-step through these copyright determinations. I'm going to hit a few really broad strokes here. A lot of the broad determinations and some of the steps that I'm going to be going through in the coming slides are excerpts from Rights and Reproductions, the Handbook for Cultural Institutions now available through Roman and Littlefield in its second edition, a little side plug for you there. But essentially you want to look at that for these broad determinations, you want to first be looking at your work and that assume all works by a single creator are either unpublished or unregistered. Second, look at works by living creators or creators who died within the past 70 years will be under copyright for the life of that creator plus 70 years. Just a reminder, these determinations are based on U.S. copyright law so again just to the copyright term for your specific country where it might be life plus 50 years or life plus 70. Third, look at works by anonymous creators or in cases where the creator's death date is unknown, works made for hire and your corporate works, that those works will be under copyright for 120 years from the date of their creation. And of course remember all of the various exceptions that we talked about earlier particularly that U.S. government federal works do not receive that copyright protection. You want to also be looking at making these determinations specifically looking at that first time that a work was published. Making that determination can be a lot of additional research. You may or may not have the luxury of being able to find a specific registration status or publication status but if you're able to you can do some of that through the U.S. Copyright Office in person and they're working on making more of that searchable and available online as well. The next step is identifying the copyright holder. And this could be in a number of places. So you want to be able to sit and start looking at works and looking at the actual work itself. So look at your opinion, look at the book. Is there a copyright notice on it? Do some background research on the creator. Check your institutional records. Look through historical files that your registrar might have. Look through curatorial records. Look through purchase records. Look through records and press even from your development office. Libraries, your archival records that might have some guidance to who holds that copyright. Look at accurate databases. So things such as the artist rights society or the watch files out of the Harry Ransom Center. Mind the web. A number of times and particularly with more active artists and authors working today, many will have a website and you can often find contact information there. Confirm with your colleagues. List serves are in an invaluable way to be able to track down copyright information. Inevaluate priorities. Are you going to go step by step and assess every work in a collection or is identifying a right holder going to be based on a specific youth? Is it going to be in preparation for a specific exhibition or a publication that's upcoming? Is it versus a started the first succession number and work your way all the way through? In addition to considering just the copyright in the IP within the work, you also have to start thinking about that there could be other intellectual property considerations aside from just the copyright when you're looking for a right holder. Could be looking for the copyright holder. You may also be looking at potentially somebody holding trademark rights, privacy and publicity that we talked about. Looking at the work as public domain or not. If you're going to be looking to license something or if you're going to potentially be making a fair use analysis and importantly, you want to also look at is this a work that potentially has underlying rights? When we talk about underlying rights, this will be something where perhaps it's say an alphabet sequence photograph. Most of the alphabet sequence photographs are now in the public domain but it's an alphabet sequence photograph of Georgia O'Keeffe with one of her artworks. Do you rely on public domain for the entirety of the photograph or how do you also consider the copyright to Georgia O'Keeffe's painting that appears within that photograph? You could have multiple layers that have to be licensed. In addition then to not only having her artwork and the copyright as an underlying right, you may also have her underlying right of publicity with her likeness reproduced in that photograph as well. Just remembering that there could be multiple layers to consider when licensing or doing a fair use analysis. There's also a number of, referred to as other considerations when making these rights to determination that these are not strictly copyright or intellectual property considerations but may also need to be taken into consideration when reviewing the right holder and if licensing or fair use will be considered. So we think it will work by indigenous people, representations of the penalty or violence or otherwise sensitive materials. Perhaps you have created restrictions or donor restrictions that perhaps could guide how something is utilized or not. There are security concerns or other interactions and how something is used that you want to be aware of when looking at licensing or not. And of course any of those contractual restrictions and some of which we've talked about before. Helping to guide us a little bit in this direction is something called Right Statements. Right Statements.org is a joint product that came out of the DPLA in Europe, Piana. And this was something that was formed that after the Digital Public Library of America launched and working with their partners with Europe Piana that really started to look at it and go, they started looking at all the metadata fields and the content represented in their databases and realized it was the right field that had the most variations and the most content. And there was no consistency. So Right Statements.org is a project to try to clarify the language that those in cultural institutions utilized to talk about the copyright status of the works in their collections. So they broadly created these three categories of in copyright, no copyright, or other. And within these three categories there are 12 Right Statements that can be attached and utilized on individual works. Trying to get it so that in an international context those in cultural institutions can be utilizing the same type of language for their rights and how they're determining and stating these so that from one country to another they're able to actually look at what that Right Statement statement is and how they can potentially interpret what that Right Statement means to them. This document here created by the Minnesota Digital Library is just an amazing workflow for looking at applying Right Statements to works in our collections. I would highly recommend that you look at this. It helps you walk through different documents and collection types that you might have and different works you might have in your collections and walks you through how and where you may be able to apply different statements from Right Statements.org. Don't worry about trying to write down the link here. We've got it in the copyright handout for you to be able to reference. But that it takes you through looking at for a government document is that a federal government document, something created by the U.S. federal government, is it created by state government or local government and where those delineations and rights may change. So I realize you probably can't read it at all on the screen here but I highly encourage that you look at this and check it out later on your own time. So parallel to the Right Statements are going to be licenses. And with licenses, hopefully you will have been looking at that you've gone through, you've been able to do a copyright analysis, make a right determination, you've been able to track down a copyright holder and potentially be looking at licensing or you might be having to look at that for your use analysis. But if you are looking at a potential licensing situation that you might be in an opportunity to be able to send out a non-exclusive license. So a non-exclusive license can be something that is unbelievably valuable that you can send out to the rights holder that they work or work in your collection by them that will just not necessarily transfer their rights to your institution but will grant you a non-exclusive use for a pre-determined list of uses. Examples shown here. For the Minneapolis Museum of Art in Newfield, we broadly have non-exclusive licenses, including almost any use with the exception of creating retail products which would be negotiated separately. And this could really save a lot of time down the line that if you're able to get a non-exclusive license returned that you're able to potentially look at utilizing works by this person without having to go back to them time and time and again. You may also find some of these licenses among commissioned contracts and where you're going to outline and be noting what license is given to the institution versus what rights the artist retains in the work that's created. So I'm going to go through the next handful of slides pretty quickly. You can always go back to these later. And then we'll make all of the slides from today available later. So these are really going to be the license elements and the various pieces that you would want to have when you are creating a license, whether it's a non-exclusive or as part of a overall contract for something else that's being done. But wanting to go through and make sure that all of this information is captured in outlines. And at the end of the day, when you're looking at the contracts and by legal standards, they are going to be looking at the document itself and what is within the four corners of that piece of paper. So for the sake of time and I know that I see the growing list of questions popping up, so I want to make sure that we have plenty of time to address those questions. So I'm going to move through these pretty quickly, but you want to have the parties identified, what the material is that you're going to be licensing. So whether that's one object in your collection or an entire group of archival materials who owns the materials and who will be the ownership transferring in those materials or not. And then what rights are granted? Are they exclusive? Are they not exclusive? Is it irrevocable? Is it revocable? What those rights include within that bundle of rights that we talked about at the beginning of today's webinar within copyright? Are there any limitations or restrictions on those uses? And outlining as many of these uses up front as you can ask, that it's always easier to ask once for a lot of things and then they have to keep coming back a dozen times adding on to that license. Wanting to look at how it's used, what its territory is, how you're going to measure that use, other elements to consider within it with the medium. You want to look at what that term is. Is it something that's going to be in print? Is it something that's digitally based? Are we looking at a defined number of years, a specific print run perhaps, or is it something that's in perpetuity? I want to especially be sure to note, as well as the individual uses, be looking at the credit lines in the copyright notice and how that attribution is seen coming through with any of the uses. Of course, if there's any fees in the exchange of license, I want to make sure that that is stated. Just get into what a lot of people refer to as the legal use of these licenses, but they're very important. I want to look at the warranties and representations that the creator wants, yes, that further to any other information, what they're stating, that, yes, they weren't, they hold the rights to this. They are able to actually grant the license that you are seeking from them. Any limitations to liability or any dignification that you perhaps could be looking at, and then, of course, the signatures. Whether that is something that you're looking at, physical signatures on printed documents, electronic signatures, or perhaps even looking through a click-to-agree documentation. Other forms of licenses that you might end up utilizing with cultural collections might be some creative commons licenses. And so creative commons is really all about that idea, share, remix, reuse, and how works can be identified. Creative commons licenses are just that. They are types of a license. It's not a grant of a specific, right, it's not a transfer of rights, but it is a license to a work. You might have been hearing more and more about cultural institutions releasing their images of works in their collections, particularly public domain works, under open access, and perhaps attaching creative commons licenses to those, or perhaps releasing metadata to their collections under a creative commons license. Most often, you're going to see them releasing these items from their collections under one of the first two licenses that you see here. So either that public domain mark where there's no known copyright, or the CC0 mark by which it weighs all rights in places to work into the public domain. I've seen a little bit of collections using those most recently with the MET and the Cleveland Museum of Art and their releases of their collections for open access and partnering with creative commons for this. That a large reason why I know that the MET went and used CC0 more than they used the public domain mark was that it was essentially saying that because there were always cases where it might feel pretty strongly that, yes, this work is in the public domain but there might be a region somewhere where that work maybe is not in the public domain or having to do additional research could end up finding that maybe it actually isn't in the public domain, or perhaps conversely that a work that you thought was under copyright might actually be in the public domain because it didn't comply with re-registration that was required at the time when it was created or something. So instead of looking at using that CC0 license that essentially that then the MET and the CMA utilizing that, that they are saying that they're not claiming any rights to their digital surrogate of the image of that artwork created. So again, going back to that idea of Richmond versus Correll with no new copyright and that slated reproduction and that through the use of CC0 they're stating they're not claiming any rights to that image and they are placing it into the public domain to the best of their knowledge. The last little bit that I am going to review today is actually putting fair use into use. Now remember fair use is going to come into play when we're potentially looking at scholarship research education commentary criticism reporting and non-commercial uses for the most part. In determining fair use we go back to that idea of the four factors plus transformativeness and trying to figure this out and unfortunately fair use is anything but black and white. It's not an easy tick box to say cool we meet one through four and we've met all of these so it's a fair use. Instead it's really a continuum and each factor has to be weighted and assessed on this spectrum to see are you favoring more on the edge of seeing more like fair use or is it less likely that it could be considered a fair use and you might need to consider a license. Luckily for all of us we have a lot of wonderful professional organizations that have put out an amazing slew of statements and codes and guidelines to guide those of us working in Glam institutions with the use of fair use. Many of these are included in the handout material so I highly recommend that you take a look at these. They can really help guide when and how you can potentially utilize fair use and how you can make some of these determinations. I will just put out a word of caution that although you might have times where you think you have a really great opportunity for a fair use sometimes you may still need to look at a license and sometimes it's about maintaining relationships. So for the Netflix Museum of Arts when we about a year and a half ago rebranded our overall campus to Newfield new logo, new name and we went you know what, our designers and our marketing team really love our swallow it wall and they wanted to use a detail of it within our new logo. I'm pretty sure I went and hid under my desk at that point going oh the headache in the work this is going to entail I had some marketing people like oh it's a detail it's going to be a fair use it's such great exposure for swallow it and I'm sitting there going that's going to be a peer on everything and trying to maintain a good working relationship with the swallow it we reached out to them to look at licensing though. We got very lucky the swallow it was actually thrilled to be part of our new branding and to be utilized in this manner and actually granted us a license for this and that for most of it they actually granted it at no cost to us as well which was quite shocking but it was about maintaining that relationship that sometimes you're going to be seeking permission for cases where you maybe are thinking you might have an opportunity for fair use maybe you don't maybe you don't but you're maintaining that relationship another example of this for us is with our war with tensile sculpture five brush strokes on our large mall in front of the museum on our campus and so very strong belief that placing images of works in our collection on our website to be able to highlight the works in our collection is a fair use this is something this image of five brush strokes on our website we stand by that that it's fair use we did not license anything from the Luton Stein Foundation yet when we put out a new book about new fields and our art and nature collection and we had images of five brush strokes that would appear inside the book as you see on the left here and it's quite interior reproduction and probably a fair use however then when we got some initial design proofs back from our designers and they wanted to use the Luton Stein on the cover of the book that started to change things a little bit but then at that point not only was it just tying into the collections and being how it in the context of that but now as the cover of the book gets walking that borderline of maybe being a little more commercial and marketing in its use so we reached out to the Luton Stein Foundation for this and again similar experience that we had with the Luton Foundation they were actually quite thrilled to be featured and be part of this book and be featured on the cover and in lieu of a licensing fee that we may or may not have had the ability to pay they actually just asked for a larger number of gratis copies of the publication to be sent to them so that they could provide copies to their entire board which we were happy to do because shipping them extra copies of the book was exponentially less expensive than having to pay a large licensing fee and I will just also point out that sometimes you might have this really great idea and it is so clearly has the potential to be a fair use that it's perhaps something at an institution for an exhibition and it's in gallery it's contextualizing it's talking about the works and this is something that you feel really strongly is potentially a fair use however sometimes the individual that you also need to license an image file from happens to also be the copy holder so we have that case here where this lovely photograph that we wanted to be able to reproduce in an exhibition and the only way that we could get an image file large enough for our needs of enlarging the photograph to put on a wall and have it enlarge to 9 by 12 feet was from the photographer himself and so we worked with him very closely and we did pay a licensing fee to him but in this case it was not as much of it being a licensing fee specifically for the copyright although it was getting the file from the who happened to be also the copyright holder but this is also sometimes it is an image access fee that you're paying for access to that really large original image file just that reminder that fair use is probably not going to cover all possible uses and ethical users have to consider that permissions might be necessary I have one more quiz for you and then we'll get into some of your questions what risk does an institution assume if it uses an orphan work very good potential infringement clearing well done hurdles chart includes which categories determining copyright says architectural work never published never registered works registered or first published in the United States sound recordings works first published in the United States by foreign nationals or citizens living abroad or all of the above producing a core work that includes a work depicted there may be additional layers of copyright to clear this is referred to copyright layered rights underlying rights or copyright cluster well done again and underlying rights although I would there's part of me that really wants to start a petition with the copyright office and get copyright cluster officially in there somewhere feels pretty applicable sometimes and what are reasons to request a one-time permission for use the right holder previously noted a preference to handle each request individually project has imminent deadline fees a fast reply fees assessed for each use by a rights holder rights holder represented by an agency like the artist rights society or adcaps or all of the above because of the visual artists rights act attribution is a legal requirement when an institution uses a creator's work true or false looks like I may have finally gotten you guys so while attribution is something that we all like to be able to provide and attribution definitely helps towards a fair use analysis and fair use stance attribution is actually not legally required by visual artists rights act so with that I think we'll be able to start getting into questions here in a minute but I will just say as a few final thoughts that by and large it's better to sit back do that analysis when you can if you have the time and the ability to do it on an individual item that's amazing but remembering that overall you're probably going to be looking at some of those broader strokes and to really be able to look at that attribution may or may not be something that you consider that you may want your collection known but where you are legally required or not to have it and remembering to consider not only the intellectual property and copyright issues that you might have with a project but also those non-intellectual property issues as well. Thank you. I appreciate all of you staying with me today. Okay, I'm going to put up the evaluation link the evaluations are really important to us so I do hope that you folks will fill this out and I'll read the questions. So Cindy McKay asked for which work was it 1893 for identifiable authors but 120 years for anonymous work why is it 1893? I don't know. 1893. Hold on. It is... That would be my typo. So apologies. It should actually be 1899. Good catch. Sorry. Okay. All right. I thought I got all of those dates and years updated. That one must have totally snuck through. So my apologies there it actually should be 1899 to parallel with that 120 years. Sorry about that. All right. Margot Goetstein says does a museum need to get permission before creating a display facsimile for an exhibit? And you probably just covered that, right? Yeah. For better or worse it comes back to a little bit of it depends. Does your institution believe that potentially as a fair use? Unfortunately the museum is not covered by that section 108 that we talked about that libraries and archives are covered by. So before a museum could make a reproduction of that and put a reproduction on display they likely are going to either look at is it something that they believe is a fair use in order to be able to have that on display or is it a case where they're going to be seeking permission in a lifetime? Okay. I will speak up. There is a question. Can you please define the work and there was a discussion about it but I'll let you define it too. Oh, sure. Specifically speaking in regard to U.S. federal government works created by employees of the federal government in the course of their employment so it may not be somebody governed by a federal contract because that likely would be something governed by that contract specifically but looking at federal government workers in the course of their employment that works that they produce are in the public domain. That same exception that the government works be in the public domain is going to be different when you start looking at the U.S. state and local government levels and those are each determined by different states and local laws. One of the examples that people put in was WPA work. Does that qualify or? Correct. The WPA works are largely in the public domain so that's a great exception so looking at the Dorothea Lange photograph that I had that was a work that she actually used as part of her work in the WPA and is in the public domain yet other work by Dorothea Lange taken around the same time period are copyright and her copyright is actually maintained by the Oakland Museum of California. What would the situation be for something like a ceramic vase created by Newcombe Pottery? Is this a corporation? What would what about when we also know the decorator or the potter? That is a case where you could potentially have multiple rights holders. A lot of it is going to be governed by the contracts between the corporation and the artist and or designer that it might be a case where the corporation holds all of the rights but it might be a case where rights are jointly held between the corporation and the designer or artist. I've seen it both ways. I've also seen this when you look at fashion photographs and things where that appear in like the magazine or something as well. Sometimes those photographers hold the rights to their images but other times it's transferred to the governing corporations. In examples like those it might be held by common ass but it might be held by the individual photographer or both. Okay. So Mark Kratzner said defined published is an O'Keefe painting that was not displayed published? Maybe. Yeah, I know. There's a lot when it starts getting into the legal and with the copyright where the answers are always maybe or it depends. So published when it comes to artwork becomes a much grayer area. It might have been actual display in a gallery or a museum exhibition. It could have been publication in a catalog or auction catalog and publication can occur years after a creation as well. So it's one of the areas within copyright law that I will say working from personal experience and particularly if you are working in the rights, determination and world of in broad stroke you're not going to get down to that publication of individual works research very often especially when you're looking at your collection overall and making some of these broad strokes and broad determination where that maybe comes in to be more applicable is if there is something in your collection that is very important that you really want to use and it's on that sense as to whether it's under copyright or in the public domain that's where you might be doing that additional research down to the item level spending some time with the copyright service and doing the really fee-level dive to figure out registration and re-registration first publication to really try to make this very item level specific copyright determination. I know for example the Art Institute of Chicago has been able to place a couple drawings that they have by Picasso into the public domain because they were able on these two very specific drawings to do the item level research all the way down to find I think in one of them it was registered but never re-registered so it fell into the public domain one was never published and something else I don't remember all the nuances but that research on two works took their IP council over a year most of us don't have a year to spend researching just two individual works so while publication is important when you're having to do that really intense deep-level research I don't think most of us are going to get to that level okay so we have about nine minutes and I will tell people that the questions that don't get answered I will give to and I will post your written answers as soon as I get them from her absolutely and I call those trailing questions so we'll don't worry your questions will get answered Susan Schlecht says what about general newspaper articles for use by museum I'm assuming that this means articles that that the museum is using um well that would could go one of two ways if you're actually talking about displaying the actual newspaper and the actual article that would be fine if you're looking at reproductions of it you might utilize them again it might be a fair use depending on how you're utilizing it but most likely if there's a specific article that you're looking at reproducing there's probably copyright in that either with to the journalist or the corporate owner of that newspaper okay Asita Albert says what is the legality regarding review copies donated to the library because there wasn't a first sale I don't feel comfortable adding to our collection and return it to the donor what's the best way to communicate this to potential donors and co-workers who might not agree or understand is that a copyright question I'm not sure if that's actually a copyright question or more of a procedure donated question in an ownership of actual physical material question obviously my contact information is on the screen so I'm happy to try to answer that question but I think I might need some more information to figure that one out okay Diana I'm not even going to attempt this does the museum library archives have the right to charge someone a usage fee publishing a photo in a book for example if the photo is technically in the public domain not just a fee to have a photo scanned but for the right to use the work I think that's a really good question so this is definitely an area in the field of rights and reproductions that is shifting and changing right now that a lot more institutions are moving towards more open access and waiting reproduction fees for licensing materials but may still charge a image preparation fee so that work to have a new photograph taken or a new scan prepared to cover their staff time and expertise in work to create that new digital surrogate to send and this is kind of it's an evolving area and it really comes back to institutional practice and what your institution wants to do and whether they assess every reproduction fee or not for works underlined that are in the public domain for the Indianapolis Museum of Art at Newfields we don't charge a reproduction fee for works that are in the public domain we make those available under open access but if the work is in the public domain and needs new photography we are going to assess our image preparation fee because depending on what the work is how many of our staff members need to get the huge that we need our installation crew to actually relocate the work to our photo studio our photographer and our photo editor's time to prep that file so okay how does copyright transfer work when the creator dies if no specific beneficiary is named oh and one more question regarding the definition of a copyrightable work where do designed objects like political campaign posters event posters kind of an emergency coins and house where it's fall is a copyright is copyright an issue for artifacts like this particularly if the designer is unknown so that's two questions yeah that was definitely two questions. Can you say the first part again how does copyright transfer work when the creator dies if no specific beneficiary was named okay so let me tackle that part first so transfer of copyright will actually follow ideally and hopefully you will be in a case where the creator has created will and depending on how prolific they were in life and how successful they were perhaps they've created a foundation or they have a functioning estate that will then take over their management of their rights if however there is no will or no foundation or something like that that's created to have the rights transferred to after management of those rights transferred to after the creator has passed away then it's going to follow intensity laws it will be you know vary by state for that descendancy so most often that would be then looking first to a spouse or partner if there's no spouse or partner then looking to descendants so children then grandchildren and this is where I'm saying there have definitely been times where you might fall down and somebody might be a great grandchild of someone and may or may not realize that they actually manage the rights for this person now but yeah so it would follow just your intensity laws of a particular state where they passed away okay let's answer one more question then I'll send the rest of these to you um let's see apologies if you answered this this is from Kenny Libbin if you answered this earlier but regarding fair use in terms of a display in a museum does fair use apply if the museum uses a copy of the original work i.e. a copy of a photograph rather than putting the original photograph on display as long as the original is in the collection of the museum great question so yes if you're putting the actual object or photograph on display then you don't need to be looking at fair use analysis or exception in the law you're creating a reproduction of that to include either as part of like a label copy or a didactic or even a reproduction just for preservation purposes instead of putting the original object on display I would say that most likely you would have a very strong fair use stance for that in gallery exhibition use because it's likely going to have more of an educational angle it's going to be more non-commercial in its use it's going to be contextualized with the other works around it so I think that there's a stronger opportunity for that to potentially be a fair use to them but again that's going to be an analysis that has to be done by each institution and based on what level of risk and liability that institution is comfortable with potentially taking on that role okay I think that's the end for today I will send these questions and get answers to them and I'll make sure that all of your questions get answered please fill out the evaluation and everything will be posted except maybe the trailing questions in the next few days so as I said if you're going to Collections Care website you'll find the webinar all the handouts the recording the PowerPoint slides and the trailing questions in the 2019 archive so thank you very much