Navigating Copyright

Alexander Herman

As museums look at coordinating more digital exhibitions, what is the impact and importance of copyright and what will its impact be on exhibit development? Alexander Herman, an expert in the relationship between art and the law, answers some of our questions on copyright. Other issues, such as deaccessioning, will be explored in future editions.

Why do museums need to think about copyright?

Copyright can affect museums largely in two ways. Either (A) the museum is the creator of new content, which can be protected by copyright law or (B) the museum is dealing with or using somebody else’s copyright-protected content. Each of these will require different approaches, understanding and policies. The museum as content-creator means that it will need to manage this content, either licensing it out, making it available for free use or, if necessary, policing its use. This can include material like the text in displays or exhibition catalogues, since in most cases the copyright in anything created in the course of employment (such as by museum staff or an employed curator) will belong to the employer, so the museum.

On the other hand, museums dealing in somebody else’s content is exemplified by a museum photographing a painting in the collection. Just because the museum owns the painting doesn’t mean it owns the copyright, so it will be restricted in the ways it can make copies of that work (by photography, digitization, etc.). This has a huge impact on website development, educational opportunities, advertising and of course mass digitization projects.

During the pandemic, when museums are more likely to focus on digital as opposed to physical exhibitions, copyright becomes especially critical. More reliance will be made on making quality reproductions of works and placing them online, thus triggering copyright issues. When organizing such exhibitions or digital projects, a copyright strategy should be thought out well in advance. Tracing rightsholders is often very time-consuming, so it’s best to start early.

What kinds of policies should museums have regarding copyright?

It depends on the size of the institution. Large museums should inevitably have a comprehensive copyright/IP policy because they are very frequently licensing out images under a variety of terms and indeed using images for displays, films, catalogues and advertising. Smaller institutions should also think about having their own, tailored policies based on the kinds of use they make of material. But as soon as they are putting images up on their website or publishing them in any way, they should definitely appreciate copyright. As such, they need a policy, both internally (so all staff understand the issues, exposure and potential risks) and externally (so the public is aware of the museum’s treatment of images, especially as someone might want to license an image of an artwork). Either way, large or small, the policy should be easy to follow and made available to the public.

What is the difference between copyright and intellectual property?

Copyright is one branch of law found within the larger area of intellectual property (or IP) law. Copyright applies to all “works” and this means artistic, dramatic, musical or literary works, as well as to film, broadcasts and sound recordings. So copyright may be in play if you have any of these types of works in a collection. IP is broader: it includes copyright, but also trademarks, patents, designs and the like. While trademark can be important for museums looking to protect their brand (their logo or other associated images), it is not usually as pressing a day-to-day matter as copyright.

Does copyright law apply to all items in a museum’s collection?

No, but it depends. As I said above, it can apply to — for instance — artistic works. So let’s consider a painting. If the work was made by a living artist, it is almost certainly in copyright. This is because copyright lasts for the life of the artist plus a certain period thereafter — currently in Canada it’s 50 years after death. So just because an artist is no longer living doesn’t mean you don’t have to think about copyright. In cases where the artist died less than 50 years ago, you may have to get in touch with the heirs (if you can find them!) or indeed a collective society which manages the rights of that particular artist. That said, just because a painting is still in copyright doesn’t mean you can’t do certain things with it. Luckily in Canada there are a number of exceptions that can protect some — but not all — of the activities of museums from a possible copyright infringement claim.

There are also strange creatures called “exhibition rights” which are unique to Canada and mean, for Canadian works created within the last thirty or so years, you may need to get clearance or pay a licensing fee simply for displaying them in your gallery. Other countries don’t have these and there are some in the Canadian museum community who think they are an impediment to putting on great shows by contemporary Canadian artists. That said, they exist to protect artists and effectively give them a cut if their works are being shown in public.

Museums often deal internationally with other museums that have their own approach to copyright. How can this be navigated?

Although there are some international standards in copyright law, it is largely a country-specific law. So you need to bear this in mind. For instance, the Americans have very different rules when it comes to copyright and a very different mentality altogether. People who have done cross-border exhibitions will know what I’m talking about. For instance, in the US there is no copyright in federal government documents and so staff at US institutions may assume it’s the same in other countries, like Canada. Of course, this is absolutely not true: we have Crown copyright in government documents here. It’s also important to know that copyright law is Canada-wide, so it’s the same across provinces.

Are there any important changes on the horizon for copyright law?

Yes. Copyright is always undergoing change in one form or another in Canada. This is true both with legislative change through Parliament and with judicial change introduced by the courts. One significant change comes from the USMCA/CUSMA trade agreement with the US and Mexico. It has specifically required Canada to lengthen copyright duration by 20 years, so it will soon be life of the creator plus 70 years. That will put Canada in line with many other countries, including all those in Europe.

Beyond copyright and IP, are there other areas of law that are important for collections?

Most certainly. Copyright and IP only affect the intangible rights to collection objects, but you also have to think about the tangible rights in objects. So questions of title/ownership, stolen art, good faith purchases and the impact of limitation periods will arise. You also have to think about your contracts, such as acquisition or loan agreements, as well as import and export. So there is plenty included in “art law”. Someone once said there is no such thing as “art law”, but I couldn’t disagree more.

How can museum professionals find out more about copyright and its impact on collections?

The Canadian IP Office has useful general information about copyright on its website, as do the relevant collective societies like Copyright Visual Arts (formerly known as CARCC). Legal aid clinics that focus on the arts can also be helpful. There are also courses, like the one run by my organization, the Institute of Art and Law. For example, in June we run a course on IP and museum collections and, because of the pandemic, it will run entirely online this year. M

Alexander Herman is the Assistant Director of the UK-based Institute of Art and Law. A former lawyer in Montreal, he teaches and writes on art law topics. Twitter: @artlawalex