“Any analysis of ownership and duration must be performed on a case-by-case basis for each work.”
Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives & Museums.
Peter Hirtle, Emily Hudson and Andrew T. Kenyon (Ithaca, NY: Cornell University Library, 2009)

Given this statement, from some of the best authorities in the field, we faced a dilemma:

• We have tens of thousands of objects in the Museum collection.
• We want to put the entire collection on line so people will have access to both data and images, even if they’re only thumbnails, likely to fall within the Fair Use exception to copyright protection.
• We want to be clear about rights, not just for our purposes (we acquire a license when we want to use an object that’s protected by copyright), but to communicate clearly and honestly with members of the community.
• However, we don’t always have all of the information needed to identify artists or the dates of the works, and may never be able to acquire all of the needed data. We may have to make our best guess. Works of art are not like books: they don’t have the author and publication date printed on the title page and “publication,” necessary for analyzing copyright status, is not as clear cut for works of art as it is for books.

Our solution:

• Paint with broad strokes, dividing the collection into under copyright and no known copyright (i.e. we think it’s in the public domain) using broad rules of thumb:

• Work created before 1923: no known copyright restrictions
• Work created from 1923 to the present: under copyright, even though copyright may have expired. Someone with the time and resources to do detailed, case-by-case research may be able to clear the work
• Anonymous artists: works created before 1890: no known copyright restrictions.
• Brooklyn Museum photographs of three-dimensional works not protected by copyright: Creative Commons license

• Open the website to comment and draw on community knowledge to correct and refine.
• Err on the side of protecting artists’ rights.
• Use thumbnails, likely to fall within the Fair Use exception to copyright protection, whenever a work may be protected by copyright.
• Take the risk to get the information out there (but include language from the Museum counsel so that it’s clear we’re not providing legal advice)
• Provide links to authoritative resources on copyright.
• Collaborate with other museums and groups interested in art and image copyright.

Some sample records:
no known copyright restrictions
under copyright
under copyright, license obtained
three-dimensional work, Creative Commons license
status unknown, research required