Copyright Qs & As: Museum/Archives Issues

Do you have a question related to your museum or archive? A question about a sculpture or painting, rights and reproductions, exhibition marketing, in-house and visitor education? Ask your questions by commenting below.

15.1  Question:  Do you need permission to include images in a print museum catalogue that will be sold in a bookstore?

Answer: Yes, you should obtain permission whether or not the catalogue is being sold. The inclusion of the image is a reproduction of that work. In some circumstances, you may be able to imply permission from the circumstances but that would not be in every case. (2009-3)

15.2  Question:  May a museum display an item when the museum does not hold the copyright in the item? For example, may a museum display a picture or sculpture of a cartoon character? Or may a museum display an unlicensed drawing of a cartoon character?

Answer:  Some countries have a special right relating to your fact situations. For instance, in Canada, there is a right of exhibition “to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after coming into force of this paragraph, other than a map, chart or plan or cinematographic production that is protected as a photograph”.  This is a right that belongs to the copyright owner of a work so you would need permission to exhibit a copyright-protected work in Canada.

15.3  Question:  We have several 19th century stoneware pieces on loan to our museum. We would like to photograph the pieces. Do we need permission from the owner to photograph the objects? Does the owner of the stoneware own the copyright to any of the images we take of the objects he owns?

Answer:  Sounds like the works are in the public domain and you are asking if the owner of the physical artifacts has to provide permission to photograph the items on loan.  You do not need permission in terms of copyright law, but check your loan agreement and see what it says regarding photographing the artifacts and who may own the photographs if they are permitted.

15.4  Question:  We have wallpapers in our historic house museums and wallpaper archive which were commercially available in the 1800s and 1900s.  Some of these companies still exist – do we need their permission to reproduce the wallpapers?

Answer:  Generally, wallpapers and functional items with designs on them are protected by another area of intellectual property called industrial design.  Check the industrial design laws in your country and determine the length of protection and when these works fall into the public domain.

15.5  Question:  Our museum has several video interviews that were donated to us by the interviewees.  What rights do we have in the video’s?

Answer:  Whoever recorded the interviews have the rights in the video recordings of them.  You need copyright permission from such persons to reproduce, post online, or otherwise use the videos in a copyright manner.  In addition, you should get releases (non-copyright ones) from the interviewees to ensure that they had agreed to the video recordings and any use that may be made of the recordings.

15.6  Question:  Our organization was given a small collections of photographs that were taken of various artists with their works. If we have permission from the photographer (also the donor) to publish these photos, do we also need permission from the artists (or their estates)that are in the photos? For the most part, the artwork in the photos now belongs to our organization.

Answer:  There are two legal issues you need to be concerned about in photographs of people. One is who owns the photographs — and whether permissions are needed to use the photos in certain manners. And two, what about the rights of the people in the photographs? In general, you should have a release from these people to protect against any claim against privacy and personality rights of the people in the photographs.

15.7 Question: When an artist or collector donates a painting to a museum, do the reproduction rights belong to the museum, artist or collector?

Answer: A donation of the painting means the physical painting is being given to the museum and not any of the copyrights, unless these are specifically transferred in writing. It is likely that the artist retained the copyrights but you will need to check this with the collector.


70 Comments

  1. Lesley says:

    Hi Andrew, you need to determine who owns the photographs and obtain permission from that person – that’s assuming the photographs are still protected by copyright (another thing you may need to investigate.) It’s true that physical possession of a work does not necessarily mean ownership of the copyright in the work.

  2. Andrew B. says:

    I recently put together a little history book and was given permission to use the photos in the archives of my local historical society. A couple months after I finished the book I noticed a few photos I used are in a digital online archive maintained by another organization. Do I need permission from both organizations? The photos are from the 1920′ and 1940′s. The organization that maintains the digital archive uses the following language… ” Possession of image does not constitute permission to use it “. If this is the case do I really have permission to use anything in the historical society’s collection?

  3. Lesley says:

    Hi Hana, the donation of a physical object does not mean that the copyright in the object has also been donated (or that the donator even owns the copyright in the object.) So you may need to obtain copyright permission to perform the work in public for example. However, some countries do have specific provisions for items donated to museums and archives that allow for certain uses without permission. Check the copyright laws in your country.

  4. Lesley says:

    Hi Susan, a couple of questions to think about. Are you reproducing any copyright-protected work? Or perhaps adapting one?

  5. Lesley says:

    Hi Karoline, without specifically researching the answer to your question, generally Canadian laws are not retroactive.

  6. Lesley says:

    Hi Amanda, there is no exact definition of non-commercial. That is something you have to decide taking in account all of the circumstances.

  7. Lesley says:

    Hi Patrick, only you can decide if your use is considered fair use. Look at the four fair use factors and make this determination based on your interpretation of the factors.

  8. Hana says:

    Hi there
    If a museum is donated photographs and short films are they able to display and play the originals? No written agreements were made and no further contact has been made with the family who donated them.
    Thanks

  9. Karoline says:

    If an artwork was created prior to when Canada’s Copyright Act came into force in 1924, is there copyright on it? Is copyright ‘retroactive’?

  10. Lesley says:

    Hi Brenda, are those objects protected by copyright? If so, you need permission. If not, you don’t!

  11. Brenda Roberts says:

    can a museum video objects in their collection and put the videos on line?

  12. Amanda says:

    Are sales of photo exhibit catalogues for a non-profit institution considered non-commercial? If images are used in a documentary film that is available for sale via a non-profit institution also considered non-commercial?

  13. Lesley says:

    Hi Heidi, elements of the board including the board itself, images, instructions and other parts may be protected by copyright law. Copyright applies to literary, artistic, musical and dramatic works – adaptations to the original game may also be protected by copyright so even if original elements are no longer protected by copyright, newer adaptations may still be protected.

  14. We are putting together an exhibit on railroad dining cars and wanted to use the song lyric “Dinner in the Diner/Nothing Could Be Finer” from the 1941 Glenn Miller tune “Chattanooga Choo Choo” in the title “Dinner in the Diner…Nothing Could Be Finer: the Golden Age of Railroad Dining Cars”. The exhibition is only up for one year, and there is no separate admission for the exhibition (other than regular museum admission, which is charged whether there is a special exhibition or not). Does this fall into “fair use” or should I consider another title or try and contact the owner for permission?

  15. Susan says:

    An artifact is in the public domain and its photos are available in many books. If I create a 3D model of the artifact from historical photos and published specifications, do I need permission from anyone? If the artifact is in a museum, do I need permission? The artifact would be sold as part of a collection for a mobile app.

  16. Heidi says:

    We have a board game in our artefact collection that still exists today. The original game was invented and patented in 1929 in England and additional patents were issued in Canada and the USA in the early 1930s. A trademark for the logo was issued at the same time.

    The orginal inventor has passed away but the game is still being produced by a leading board game company. The board and logo design has changed significantly and the rules have been altered.

    We want to reproduce the board so that our museum vistors can play the original version of the game. We will be enlarging the size of the board but otherwise not altering it in any way.

    Does copyright law apply in this case? Can you recommend other areas of law I should be considering other than Trademark, Patent and perhaps Industrial Design laws?

  17. Lesley says:

    Hi Aleem, you need permission to take any images of copyright protected works. Even items that seem like artifacts may be reproductions that have copyright in them. Also, when photographing in museums, make sure you have not violated any contractual terms and many museums do not allow you photograph in them and/or use photos for certain purposes.

  18. Lesley says:

    Hi Maria, who owns the copyright in the photograph? The artist or the gallery? Did you get permission from the copyright holder to photograph it? Do you have further permission to publish it? Are you able to contact the copyright holder for permission? If no re permission, do you think your use fits within a fair use analysis?

  19. Aleem says:

    I’m a documentary filmmaker and I have a number of images that I’ve personally taken of ancient / historic museum artifacts and paintings (that presumably are now public domain). If I have taken the photos / footage myself, do I need permission from the museum to use the images in a film, or would I only need permission to use images that they have produced of those artifacts? Do I need to credit the museum if I took the photograph?

  20. Maria says:

    I would like to publish a photograph that was taken at a contemporary art show. It is for an academic not-for-profit publication The artist has given his ok, but the gallery at which his work was exhibited is now closed. Can I publish this photograph?

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