Working Guidelines for the Copyright Project
“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
RSS 
Eastern Parkway/Brooklyn Museum
January 14th, 2010 at 3:11 pm
[…] though many works may not actually still be protected. Deb is going to blog a bit more about our working guidelines coming up […]
January 15th, 2010 at 5:54 am
Thanks for sharing this. It´s been a great help for me writing my master thesis on museums and social media. Copyright is one of the major issues on art museums but with the documentation on your work there is no longer any excuse. And salute to all your hard work!
January 15th, 2010 at 10:23 am
Thanks Birgitte. It’s always helpful to see others out there who are working on similar projects, so we hope that by jumping into the rights pond, we’ll give others the encouragement to do so too. The more of us who do it, the easier it’ll get.
January 19th, 2010 at 11:50 am
[…] the spirit of recent discussions about making our collection more available to view online, I wanted to take this opportunity to […]
January 21st, 2010 at 5:45 am
[…] credit just for the effort required to determine the copyright status of 12,000 works–a complicated, painstaking process that took Chief of Technology Shelley Bernstein, Head of Digital Collections and Services Deborah […]
January 21st, 2010 at 5:51 am
[…] credit just for the effort required to determine the copyright status of 12,000 works–a complicated, painstaking process that took Chief of Technology Shelley Bernstein, Head of Digital Collections and Services Deborah […]
February 25th, 2010 at 6:52 pm
[…] The Brooklyn Museum has been running an interesting series on its blog about how they’re dealing with copyright in its project to make its entire collection available online. Given the challenges of determining copyright in different types of artworks, as well as the challenge of determining copyright in photographs of sculptural works, the Museum has come up with an interesting solution. […]