This is a recorded session from the 2025 AAM Annual Meeting & MuseumExpo. Whether selecting images for an exhibition, celebrating successes in a publication, or sharing updates on social media, museums rely on good images. But what’s an image worth? This recorded session, designed for non-lawyers, covers best practices for dealing with image rights, strategies for finding low/no-cost resources, and important legal and ethical considerations when making image selections. Learn how to navigate image selection responsibly—and when to go to legal counsel for guidance.
Speakers:
- Kathrin Halpern, Project Director, Smithsonian Institution Traveling Exhibition Service and Smithsonian Affiliations
- Wendy Hurlock Baker, Intellectual Property Manager, Smithsonian Institution National Museum of the American Indian
Additional Resources:
Slides for What’s An Image Worth? Rights Management 101 for Non-Lawyers
Transcript
Kathrin Halpern:
I’m Kat Halpern. I’m a project director at the Smithsonian Institution Traveling Exhibition Service. Most of my work is in exhibition development and project management, but I am the designated rights person for our office. So, I manage all of the licensing for all of the traveling exhibitions, all of the work with our Smithsonian affiliates around the country, and I have the wonderful pleasure of introducing my colleague.
Wendy Hurlock Baker:
Hi. Good afternoon. I hope most of you’re not in a food coma like we are. I’m Wendy Hurlock Baker, I’m the Intellectual Property Manager at the Smithsonian’s National Museum of the American Indian. Say that with me five times. IP Manager, NMAI. One thing we are going to say at the top is we are not lawyers, and this is not legal advice.
Kathrin Halpern:
This is educational only. This is not representing the viewpoints of the Smithsonian. We are speaking to you from our shared experience of quite a number of years when we put it together.
Wendy Hurlock Baker:
Lots and lots of years, we both started at the institution, we were two. So, you can imagine how many years we have.
Kathrin Halpern:
So, we are going to get going and hopefully I can manage the clicker without a problem just to get us going, just so we see who’s in the room. Hands up. Yes. I feel pretty confident doing the work of rights management for your organization.
Wendy Hurlock Baker:
I mean, we have to raise our hands for that. Our people are out there. All right, fabulous.
Kathrin Halpern:
Yeah, but you’re kind of nervous about it?
Wendy Hurlock Baker:
Yeah. Okay.
Kathrin Halpern:
All right.
Wendy Hurlock Baker:
That looks legit. That looks legit. Okay. Scaredy cats. No. Absolutely not. And it terrifies you. Yeah. We are here for you. Yes.
Kathrin Halpern:
All right, so just a little roadmap of where we’re going to go for the next hour, a little bit less. And there we go.
Wendy Hurlock Baker:
Probably we go probably a lot less so you can ask questions.
Kathrin Halpern:
There we go. Exactly. “I found it online. Why can’t I use it?”
Wendy Hurlock Baker:
How many of you have to deal with people that say this to you in your office? Everybody, I raise your hand, “But it’s all over the internet.”
Kathrin Halpern:
Exactly. Making sure that when you’re going through and selecting images that you’re talking with all of the different parts of your museum, with the stakeholders, A, it’s really important when you’re creating an inclusive space. B, it’s also so much easier to make sure that you clear all of the rights that you need at the beginning rather than trying to go back and piecemeal things. As people start saying, “Oh, we really want to use this for social media.” “Oh my God, this would make a really fabulous exhibition cover.”
Wendy Hurlock Baker:
This is also especially important if you happen to work with communities that are historically left out of this conversation. So, for example, working at the National Museum of the American Indian, if we found a bunch of amazing photos that say perhaps, they’re ceremonial and people don’t know that that can cause a problem, it can harm relationships. So, this conversation is super important.
Kathrin Halpern:
So, to this point, especially when you’re working with marginalized groups, there’s the legal side of things and then there’s also the ethical side and being a good partner, a good community member, a good steward.
Wendy Hurlock Baker:
Just because you can doesn’t mean you should. In all cases, right? I’ll give a brief example of a colleague working at our anthropological archives, got a request for some historic footage, pretty historic footage of some women chewing beetle nut. And if you know anything about beetle nut, it stains the teeth. It’s a little deep dive into this request. Or is this a documentary? What is this for? No, it was a toothpaste ad company, right? Wildly inappropriate. So, asking those questions on the flip side of something going out versus what are you bringing in that you’re trying to license? What’s important here? What’s not important here? Do you have relationships that could be harmed? Is there trust that could be lost? Things like that.
And right now, in the United States, traditional cultural expression and traditional knowledge do not have any legal protection. So that’s the kind of thing where if it’s in your collection or you’re trying to bring it in for some reason, having those conversations or having policies around that, if you work with communities that practice these things is really, really important. Where we are, obviously you could probably guess, the communities lead that. They lead that conversation for us. And the policy for us is if the community says no, we don’t do it.
Kathrin Halpern:
So, as I mentioned a moment ago, thinking about the uses incredibly important because everything that’s on this list, there’s different things that you have to consider. So, making sure that you know what you’re getting and why you’re getting it and what you need it for. And knowing that some images might be great in your physical exhibition, but you can’t use them on social media. You can’t use them for commercial uses, like using them for advertisements. And being really, really clear with the entire exhibition team about what can get used where and making sure that people aren’t just randomly grabbing images.
Wendy Hurlock Baker:
We like to say this in our office, one license does not rule them all. That’s a really deep cut. It is a Highlander reference, for the nerds in the room. So be specific. Make no assumptions. Just because you have web use that does not equal social media use. And just because you have social media use that does not necessarily it means all promotional uses. Be specific when you’re getting that licensing done. And hold a line because infringement with your staff or your colleagues’ infringement can be incredibly costly, because it’s a per infringement, right? So, let’s say it’s five pieces of paper that you print that’s five infringements. We’re talking on the scale of how many clicks on a website. You get the idea; it gets exponentially more expensive.
Kathrin Halpern:
We thought we’d do a little bit of just some tips and tricks for finding images when you’re starting out and using things and looking for things. So wanted to again, poll the room. Who’s going to major stock houses like Getty Images, Alamy, those kinds of places.
Wendy Hurlock Baker:
Richmond ARS, art resource.
Kathrin Halpern:
All those. Archives, historical societies, libraries.
Wendy Hurlock Baker:
Digging in, doing that research.
Kathrin Halpern:
Using your own in-house collections.
Wendy Hurlock Baker:
Yeah, there we are.
Kathrin Halpern:
Okay. And please remember, just because you own the object does not mean that you necessarily have all the rights to use it online.
Wendy Hurlock Baker:
How many times do you guys answer that question for staff?
Kathrin Halpern:
Yes.
Wendy Hurlock Baker:
All the time. That’s right.
Kathrin Halpern:
All right. And who’s doing internet searches, social media, Flickr, community sourcing?
Wendy Hurlock Baker:
Not too much. That’s kind of crazy. Most of the time that’s the biggest one we get. One note about that, online sources. I know I don’t need to tell the people in this room, because you’re always smarter than this, but you might have some colleagues who are not. Wikipedia is not the source guys. It’s never the source. So, when somebody says, “Oh, hey, can you backtrack this for me? I found it on Wikipedia.” You make them go back to Wikipedia and backtrack it. Always.
Kathrin Halpern:
Yeah.
Wendy Hurlock Baker:
It’s not your citation. Oh, one other thing about that, especially with the commercial stock, well, not the stock houses, but especially with commercial image vetters like Getty Images, places like that, read the fine print because sometimes all you’re really getting is permission to use the file they have supplied you and in the very, very teeny tiny microscopic print at the bottom, it will say, “We do not hold the rights to this. You will need to clear that on your own.” And if you don’t catch it, you still haven’t licensed anything. So, it’s rare. Maybe not rare, but it happens. So just make sure you’re reading everything that comes on that invoice.
Kathrin Halpern:
And to the point of these big clearing houses. So, I always say there’s a three-legged stool, speed, money, time. You get two of them. Pick which ones you want. The clearing houses are fast. It’s really easy to go clicking through and find images. They are expensive. So, if you have a longer-term project, make sure that you plan into your project budget that you are renewing licenses throughout the life of this project. Also, my colleague said a number of the clearinghouses, they scrape images. So, you might be able to find some things on these big sites really quickly and you’re paying a lot of money. You could also go and spend a couple of days at say, Library of Congress archives or the National Archives go through their images, and you pay the reproduction fees, but it’s on a big exhibition project. You could be looking at the difference between $50,000 in licensing fees versus 15 or 20.
Wendy Hurlock Baker:
Or even less. I mean especially for the, I’m going to put it in quotes, the historical archives that are licensing these images to you. A lot of that stuff is definitely the Library of Congress. Granger is a particular one that does that. They’re not the devil. They have things that you need. I mean, don’t get me wrong there, I’m just saying that yeah, if you went it really fast, you can pay them for it. Or you could go to the Library of Congress and if you have a researcher who’s doing a little digging, that thing is completely free. And you can download the high-res same day. You have a question? Sorry. Yeah, sure. Shout it out. Or come up here.
Speaker 3:
[inaudible 00:10:19].
Kathrin Halpern:
Educational context of museums. We are going to get into that momentarily, so hang on that.
Wendy Hurlock Baker:
Yes, yes. Good question though.
Kathrin Halpern:
So, price of an image. Again, just because you can get it quickly, it’s one thing, low cost, no cost, but also making sure you spend the time to really dig, to make sure you have all of the licenses that you need. Because let’s say you’re licensing a particular photograph of a painting or another piece of artwork, you need the license for the reproduction of that image, of that artwork. And oftentimes you also need a license from the artist who holds rights. And if you don’t have both, you have yourself open for a problem.
Wendy Hurlock Baker:
And it gets even wonkier when it’s a sculpture because the photograph has a separate copyright from the artwork and from the house that’s applying it to you. There’s also the value, right? So, let’s say something’s going to cost you $1,000 for print rights and web use in a five-year term. Do most people get what I’m saying when I say that? Yeah, if that is for a project that’s going to be up for five years and you can use it for all of these things, that’s a pretty good value at $200 a year. If it’s for a postcard and that’s the only way you’re going to use it, that’s a dumb amount of money to spend on that, right? When your budget is X and $1,000 is a big chunk out of it. I mean that’s sort of common sense, but some people insist if it is not the signature image for the piece or for the work that you’re putting this thing into, you really have to weigh that. And sometimes that’s an argument with your curatorial staff, but when they’re funding it, then they calm down a little bit. But it’s not always.
Kathrin Halpern:
So here we go into some of the real fun.
Wendy Hurlock Baker:
This is the scary part.
Kathrin Halpern:
Somebody might come to you and say, “Oh, I found it and it’s in the public domain. We can use that.”
Wendy Hurlock Baker:
Is it though, is it the public domain?
Kathrin Halpern:
Is it though? And for those who are taking photographs of this slide, what you really want is that website address on the top because everybody who does any kind of work in public domain says, thank you very much to the wonderful team at Cornell who on the 1st of January of every year updates their listing. So, you can go through the plethora of details.
Wendy Hurlock Baker:
Yeah, this is just a quick shortened version. This is the quick and dirty version of the chart that they put together. Peter Hirtle is the man’s name. He is your God, he’s your guru, he’s your savior for public domain. God bless Peter Hirtle. Everybody who does rights work has a bust of him in their office. He started for HR itself. Every year.
Kathrin Halpern:
We do.
Wendy Hurlock Baker:
We do, the offerings Twinkies usually. Anyway, this is a big deal and almost everybody, and I mean everybody up to and including our institutional lawyers, use this chart. It is a good, good resource. Everybody use it, write it down.
Kathrin Halpern:
That being said, it’s really complicated. So, if you have not done this work for a very, very long time, and even if you have, when you’re making sure about public domain, talk to your lawyers because it’s complicated.
Speaker 4:
Just a comment for everybody here. As a alumni, Harvard Law offers a Cree copyright and trademark class. It’s rather competitive. It’s 12 weeks, but it’s taught by Harvard law professors, and it goes into so much detail, you will [inaudible 00:14:09] understand the intricacies of trademark.
Wendy Hurlock Baker:
And it’s pretty affordable. Oh, it used to be like $25 or something like that. Yeah, but it’s great. Now it’s free you guys.
Kathrin Halpern:
Did everybody in the back of the room hear that? No. Okay. See shaking heads. So, hang on a second.
Wendy Hurlock Baker:
Harvard Law, right?
Kathrin Halpern:
Harvard Law, but also…
Speaker 4:
Harvard Law, sorry. It’s a free 12-week course you have to apply. It’s rather competitive. It’s international, but it’s a 12-week course for Copyright 101. And then they have a separate one for patents and trademarks. It’s a college course taught by Harvard Law and TAs, but it is very, very helpful as someone who has to deal with copyright in our collection. Thank you.
Kathrin Halpern:
Thank you. All right. The other thing that I want to make sure everybody registers on this, the very top of the slide, public domain in the United States. Just because something is in fact in the public domain in this country, does not necessarily mean that it is in the public domain elsewhere.
Wendy Hurlock Baker:
And it’s rolling. That’s the thing. Up until 1920, it was pretty static based on, and I will not get into the case law, but based on some statutes it was rolling. But we are now or was static until 1923 until 1920. As of 1920, we’ve been moving forward in time. So, every year it does change.
Kathrin Halpern:
But where this gets really important is if you are putting something up on your websites, because websites have worldwide reach. So, if you are thinking you are fine because the object is in the public domain, have you done the work to make sure that it’s not covered somewhere else in the world?
Wendy Hurlock Baker:
Question.
Speaker 5:
Is that based off of creation? If it was made in the US does that matter?
Wendy Hurlock Baker:
Published in the United States. Published. And we won’t get too much into this just because that’s a rabbit hole of copyright, but what published means in copyright law is, because it was originally mainly about written works but publishes a variety of things. And this website, actually the website that you saw before go goes into that. But yes, it’s country of origin.
Speaker 5:
Okay.
Kathrin Halpern:
Another option that you might see when you’re doing your work looking for images. Somebody might come to you and say, “Creative Commons.”
Wendy Hurlock Baker:
Just how many have you guys have encountered this? Okay, so pretty familiar. Okay.
Kathrin Halpern:
Fabulous. So, there are six different types of Creative Commons. Creative Commons allows people to put works out, but there are various levels of access. So, the one that gives you the most flexibility, the one that is the easiest to navigate where you’re not having to remind folks of proper citations and what can and cannot be covered and used is looking for Creative Commons zero. It’s either written out as CC0 or zero is spelled out, or just a zero mark. And that one really does give you the most flexibility and it’s the one that I always breathe the sigh of relief when I see somebody coming to me with a CC0.
Wendy Hurlock Baker:
And just for a little background on this, just for those of you who may not know in the room, this is in the United States, copyright as of the ’76 act is inherent right? The second you put something in a fixed medium, copyright is applied. This is a way for an individual to change those automatic rules. So, if Kat makes a thing and she wants to dedicate it to the public domain, she can apply a CC0 license to it or a variation of CC. It can be BY, these things mean like by, you can’t change it, or you can change it just as long as it’s attributed. Things like that. You can get into that in the Creative Commons website, but this is sort of a reaction to the automatic, I don’t like the word restrictions, but limitations that copyright puts, that is automatic in this country. This is the response.
Kathrin Halpern:
And so the little arrow there is everything from outside of CC0, which is you can do whatever you want with it, CC BY, you have to give the attribution of who created the work, and it goes all the way to where you can’t use it for commercial use so that you have all these extra restrictions-
Wendy Hurlock Baker:
You can remix it, but you can’t sell it. There’s a bunch of ways that it works. But one thing to keep in mind with these, when let’s say you’re licensing something in and it has a CC0 on it or anything, actually any CC on it, these are updated periodically. So, make sure that you document. So, let’s say it’s an image of a piece of artwork that someone has applied a CC license to click through their license. What I do is make PDFs of the screen and what the original asset with whatever the CC license is at the time so that it’s CC BY 2.6 or whatever. So, if there’s ever a question, you can say this, “At the time it was this and I fall within the scope of that.” Keep it as part of your documentation for your rights work for projects.
Kathrin Halpern:
I’m going to underscore that again for all of this work, document, document, document. And when you think you’ve documented, do some more.
Wendy Hurlock Baker:
All the documentation. So how many people are super freaked out by this one?
Kathrin Halpern:
And how many people have had somebody come to them and say, “But we’re a museum, we do educational work, we can use anything we want.”
Wendy Hurlock Baker:
Everything in a museum is educational work. Who doesn’t feel that way about it? The people whose creative work that we [inaudible 00:20:03] employer exploiting and exploiting. I mean with a little e, not the big E.
Kathrin Halpern:
So fair use is a defensive argument. You are using a fair use argument when the lawyers are involved.
Wendy Hurlock Baker:
Don’t guess.
Kathrin Halpern:
We don’t want to get the lawyers involved. You do not want a suit. So do not do this unless you know that you are on very solid ground. If you are thinking that this is a direction you want to move, run, do not walk, to your legal counsel and start talking with them about it.
Wendy Hurlock Baker:
And really, if you can understand your organizations for risk here or if they’re just like, “I don’t know.” That’s a pretty good sign that maybe you might need to put a line item in the budget for a once or twice a year session with counsel just to have a conversation about this. Because sometimes this will go in your way. This is the kind of thing that I like to refer to is you’re driving around your neighborhood with no seatbelt on at 20 miles an hour, 99% of the time, not a thing is going to happen, but that 1% of the time is real bad. I mean, we’re from the Smithsonian, so we’re a pretty big moving target. So, we see a lot of these conversations. But if your organization is very risk averse, this is definitely something you need to discuss with somebody who is legally obligated to run through all this stuff with you.
Kathrin Halpern:
And there is no blanket standard on fair use. So, every time you’re in one of these situations, it’s a per case determination. And there are four factors involved which are up on the screen.
Wendy Hurlock Baker:
I mean none of them weigh more than any of the other. That’s the thing that you’ll hear in one of these law classes. And you’ll hear things like, “Oh, it was a fair… “. You hear about this in the news, right? Richard Prince, Jeff Koons, the Warhol one, we’ll get to later. There’s a lot of conversations about this and just like everything else, court rulings sometimes are on trend. So, it’s one way, you can’t count on that because it’s one way this week or this year. Next year could be completely different. The courts are made up of different folks, they have different opinions. So, you got to really, really think about it.
Kathrin Halpern:
Personality rights also sometimes referred to… Oops, there’s a second clicker.
Wendy Hurlock Baker:
Surprise.
Kathrin Halpern:
Yay. Personality rights or publicity rights. So just because you’ve gone out and you’ve gotten that fabulous photograph of Babe Ruth that you’ve licensed, have you also gone to the Babe Ruth Foundation and made sure you’ve gotten a license from them?
Wendy Hurlock Baker:
Or Kim Kardashian.
Kathrin Halpern:
Or Elvis?
Wendy Hurlock Baker:
Marilyn Monroe. Yeah, there’s a lot of, this is more complicated generally when there’s something commercial involved, but you can’t always assume that non-commercial is okay.
Kathrin Halpern:
And it isn’t just big names, it’s also all of us here. We all have rights to the use of our image.
Wendy Hurlock Baker:
And voice.
Kathrin Halpern:
And voice.
Wendy Hurlock Baker:
You hear that AAM recording.
Kathrin Halpern:
We did wave.
Wendy Hurlock Baker:
I know. Don’t tell them that. The other thing is too kids, right? That’s a whole other category of no-no. So, this is all the kind of stuff you have to really think about it pretty hard and who are you talking to about this stuff.
Kathrin Halpern:
And making sure that you are in compliance with the policies that your museum has. And if your museum does not have a policy, also time to have a conversation.
Wendy Hurlock Baker:
And is the use, your internal use or external use depending on what you’re trying to do with it, is it worth whatever risk that may be involved if you can’t get ahold of somebody or depending on what your, let’s say it’s a director of where you are that is like, “Yeah, we can use that. No problem.” Well then maybe you don’t have a choice in the matter, but you can alert them that it might be sticky.
Kathrin Halpern:
And again, document, document, document. Yeah.
Speaker 6:
If you have someone sign a blanket portal release, is that [inaudible 00:24:21] for this [inaudible 00:24:22]?
Kathrin Halpern:
So blanket releases, what does the release actually say? And this is why I underscore that. My particular office at the Smithsonian with traveling exhibitions, we’re working with museums all across the country, including our affiliates and there’s 210 plus affiliates around the country. If they have one of our exhibitions and they have a release and they have somebody sign it, but their release is only written for their museum, they can’t transfer those images to us for us to use. So, you have to make sure that the release that’s being signed covers all of the uses that you want, including sharing that image with another organization.
Wendy Hurlock Baker:
And when you say blanket, is it a sign at a public event that says you may be photographed? Is it an actual, what would we refer to as a model release where it outlines this might be used for, we have our boilerplates like six sentences long. It’s like, “Exhibition, publication, social media, web use any website where the Smithsonian may maintain a presence.”
Kathrin Halpern:
Any third party that we would like.
Wendy Hurlock Baker:
Any third party that we like to given to, related to this content. I mean it really does depend. The language has to be robust enough that the comfort level of that release, how you’re going to use it fits with whatever that is. It is good to have those templates though. Absolutely.
Kathrin Halpern:
And it’s also incredibly important if you are doing an event and there are children and you’re looking to have photographs taken that you have a staff member following the photographer with your releases to go up to parents, make sure that they are, in fact parents, because sometimes the adult with the child is not actually a parent or a legal guardian and it has to be a parent or a legal guardian that allows that use of a child’s photograph.
Wendy Hurlock Baker:
And if that’s for your marketing team, urge them to set this up professionally with kids who are models that do this all the time, and they come in and they look super excited to engage with whatever the thing is. That’s covered, that’s covered under their contract.
Kathrin Halpern:
And if you don’t have the budget for child models, if you have staff members who have adorable children with curly hair and big smiles and are willing to help promote your museum, have a photography day with the kids from staff.
Wendy Hurlock Baker:
I mean you still need to get something signed, but-
Kathrin Halpern:
Absolutely-
Wendy Hurlock Baker:
… it’s way easier. It’s way easier if you can sort of how we say cast it versus then trying to do this with the public.
Kathrin Halpern:
So again… Yes?
Speaker 7:
So, as you have a posted sign, like say there’s a crew in a gallery, is that actually legally binding? And also, just saying, “Oh, you could choose to avoid that area?”
Wendy Hurlock Baker:
So, the question is if you have a sign posted and the terms include this kind of use, is it legally binding? This is the most common phrase I use at work, “Yes. No. Maybe. It depends” Right? So, if you are talking about using these to, let’s say it’s images, it’s a public event, signs are posted, it’s a big open space. We’ve got lots of kids running around in an atrium and you’re using it to advertise the next version of this event. My guess would be that that’s probably fine. If you are zeroed in on a single child doing a thing and you want to put that in a magazine ad, absolutely not. You need to run that down. So, it’s the degrees of which, it’s a spectrum and I think that most people, that’s a commonsense kind of decision.
It’s when your folks get super excited because the picture’s real good, that’s where it gets a little more complicated. And if you have the ability to track somebody down, you can usually work that out and you can usually work that out for free. They’re just excited you want to use it; you just need to be asked. But the issue with winging it, especially with minors, gets really, really sticky and tricky.
Kathrin Halpern:
So, this is another moment of saying planning in advance, talking things through with the team that is putting on the event, talking things through with any of the other departments that might end up wanting to use images that come out of such an event. All really, really important to do that laying the foundation work.
Wendy Hurlock Baker:
All right, do any of you guys use open access or have worked at organizations that have open access?
Kathrin Halpern:
A little bit?
Wendy Hurlock Baker:
Okay.
Kathrin Halpern:
All right, so open access. A number of organizations have started putting some portion of their collections on platforms and enacting open access policies. Please remember if you’re looking at this, to follow the guidelines for each individual institution, they vary. And just because a portion of an organization’s images are open access does not mean that everything is open access.
Wendy Hurlock Baker:
And this is Wendy Hurlock Baker pet peeve. The name is a misnomer. Open access is a misnomer. Really what it means is open use. So, this is a good thing when you’re trying to find content. It doesn’t necessarily mean, it means that the rights have been waived, but it doesn’t necessarily mean personality rights have been waived, just the copyright has been waived or it’s in the public domain or whoever owns that has given it up. It is very useful I think for a lot of content like sticks, rocks, bugs, dead white guys. But it also can be problematic for collections that perhaps, again at the National Museum of the American Indian, we don’t put anything into open access because our default is that the community needs to say that that’s okay. So that’s a different setup, but that doesn’t mean you can’t use things. That you all are happy, welcome to use anything in open access and the next slide has a lot of really good resources for that for stuff. Just make sure you read it really carefully.
Kathrin Halpern:
So just a selection of some of the institutions that have put some portion of their collections online under open access policies. And again, you’ll notice that on this list is the Smithsonian Institution. Not everything at the Smithsonian is available.
Wendy Hurlock Baker:
But like I said, lots of sticks, rocks, dead white guys. We do have a ton of stuff actually in open access. It’s just generally you’re not going to find a ton of contemporary art there. That makes sense. This stuff is still in copyright.
Kathrin Halpern:
We’ve been talking a lot about images, but please remember all of this also applies to music, video, text, translations.
Wendy Hurlock Baker:
That’s a surprise for a lot of people. Translations carry their own copyright.
Kathrin Halpern:
And people have gotten in trouble recently around that particular one.
Wendy Hurlock Baker:
Yeah. Also, a note about music. Don’t touch it with a ten-foot pole unless you have an attorney because it gets real crazy unless you’re at a stockhouse, like a complete stockhouse for music. Somebody had their hand raised>.
Speaker 8:
For translations what [inaudible 00:31:48] gallery?
Kathrin Halpern:
So, the question was for translations, what does this apply to? Say for example, you are doing an exhibition on ancient Rome, and you want to have a passage of, I don’t know, Homer. And you put it up on the wall.
Wendy Hurlock Baker:
Good pull. I wouldn’t have gotten Homer in 10 minutes it would’ve taken me.
Kathrin Halpern:
Well, there you go.
Wendy Hurlock Baker:
Wow. Wow.
Kathrin Halpern:
Where did you get that translation? Because if you got it out of a recent publication, that publication is under copyright.
Wendy Hurlock Baker:
The underlying IP, the original is not, but the translation is, or to your point, I think maybe let’s say you are having a transcript or an exhibition script translated, right? Because you’re doing bilingual in your galleries. The contract that you have with your translation services needs to be worked for hire. Remember that that translation needs to belong to you. Otherwise, someone else can copyright that.
Kathrin Halpern:
And I’m just going to piggyback on that. Work for hire, that needs to be in all of your contracts. If you are having artwork designed for your exhibition, if you are having a logo created, if that contract doesn’t specifically state that this is a work for hire contract, the artist who designed that beautiful logo, that gorgeous mural holds rights to that work.
Wendy Hurlock Baker:
You don’t own it. We don’t own it, nobody owns it, but the person who created it. Copyright has to be conveyed in writing. And that’s the whole purpose of a work for hire contract is to make sure that the work done under this contract, it’s usually in purchase order language, things like that says that the work done under the contract is owned by the company asking for the work to be done. It should be, again, that kind of feels like an obvious thing, but it’s missed a lot.
Kathrin Halpern:
Yeah, make sure that that clause is in there. It’s also true if you’ve got a photographer taking photos of an event that you’re doing, and you want to be able to own those photographs.
Speaker 9:
[inaudible 00:34:06]?
Wendy Hurlock Baker:
You mean a photographer who works for you.
Speaker 9:
[inaudible 00:34:13].
Wendy Hurlock Baker:
If they’re an employee, it’s usually in the employment contract that anything done under their employment contract, same thing. But usually, it’s contract work that you’re bringing in. It effectively makes it the same as employee work, but it needs to be stated in the work contract.
Kathrin Halpern:
So, make sure that you’re working with your contracting team on that to make sure the clauses are in there.
Wendy Hurlock Baker:
Licensing seeps to everything you guys, everything.
Kathrin Halpern:
Yeah. We don’t talk about AI. That’s going to be…
Wendy Hurlock Baker:
We’re just going to skim over that because in our world in this room, it doesn’t exist.
Kathrin Halpern:
Yeah, skimming.
Wendy Hurlock Baker:
It’s real.
Kathrin Halpern:
Another session entirely.
Wendy Hurlock Baker:
Yes. It is.
Kathrin Halpern:
So just out of curiosity, who has in-house counsel that they can go to and talk to?
Wendy Hurlock Baker:
That’s good. Most of the time it’s like four people in the room. Use them. Use them a lot. And if you don’t have in-house counsel, back to a comment I made earlier. If it’s something that, and we know budgets are tight, if it’s something you could do maybe once or twice a year with an actual IP attorney, save up your questions, your big questions, your recurring questions. It might be worth it if you are encountering stuff all the time that makes you real jumpy, to go have an hour or two with somebody that knows how to do this work to get some really solid advice that you can move through the rest of the year in.
Kathrin Halpern:
And that’s also really important. If you don’t have somebody in-house going once, getting your questions answered and not going again for the next 20 years, not a good idea.
Wendy Hurlock Baker:
No, just ask all my curators who use these forums from a hundred years ago that they secret away and don’t show me, it’s a problem.
Kathrin Halpern:
Because the law is not static on this, so there needs to be updates. I saw a question over this way.
Speaker 10:
Yeah, [inaudible 00:35:57] we asked someone worked for us, he was a marketing, and you wanted to use a [inaudible 00:36:07] question. She says, “Well, I [inaudible 00:36:10].”
Kathrin Halpern:
Oh, we are about to get-
Wendy Hurlock Baker:
Sorry, favorite.
Kathrin Halpern:
… to that. Hang on to-
Wendy Hurlock Baker:
Designers are the best.
Kathrin Halpern:
Hang on to that.
Wendy Hurlock Baker:
You’re prescient.
Kathrin Halpern:
Because here we go. We were supposed to, if you look in your program, you would’ve seen that there are three people for this session. Unfortunately, our third has a family emergency and could not be here today.
Wendy Hurlock Baker:
Was not a split personality. I’m not Wendy and Walter. Walter couldn’t be here, and he was supposed to do this part. So, we’re going to skim it a little bit because as we said at the top, we are not lawyers.
Kathrin Halpern:
We are not lawyers. But to the question of, “Oh, we have this amazing painting and if we take a photograph of it and just turn it into sepia tones.”-
Wendy Hurlock Baker:
Just tweak it.
Kathrin Halpern:
“Isn’t that okay?”
Wendy Hurlock Baker:
No.
Kathrin Halpern:
According to the Supreme Court, Andy Warhol foundation versus-
Wendy Hurlock Baker:
You guys may have heard of this. This is a little thing that happened last year, no big deal.
Kathrin Halpern:
So on, sorry, on your left. That photograph of Prince taken by Lynn Goldsmith and then on the right, all of the variations of silk screens that were done by Andy Warhol, there’s not a lot of manipulation of that photograph.
Wendy Hurlock Baker:
But if you’re the Warhol Foundation, you’re going to say there’s a ton of manipulation. You’re going to say it looks completely different. It’s an homage, it’s a nod, it’s a thing. It’s all the stuff that they argued. And again, we’re not going to get too much into this. We’re not lawyers. But this did not go the way everybody thought this was going to go.
Kathrin Halpern:
And because seven to two, the Supreme Court said, “Ah, no, just because you’ve got a big famous name.”
Wendy Hurlock Baker:
And actually, I regret not, I just now literally just thought of this. I wish we had done the Richard Prince case, which was the exact opposite outcome, which showed Richard Prince slapped like three splotches of paint on this photographer’s work with the Rastafari and they totally ruled it was transformative and it was fine, it was great. And it basically ruined that photographer’s career. It was awesome. So, you can’t tell, right? You don’t know exactly how it’s going to go. So again-
Kathrin Halpern:
And so that’s the point of it changes the basis of the law changes. You need to stay on top of it, talk to your lawyers.
Speaker 10:
But in the end did the artist get money or just credit? [inaudible 00:38:44] still [inaudible 00:38:44].
Wendy Hurlock Baker:
I think they ruled in favor of Goldsmith.
Kathrin Halpern:
They ruled in favor of-
Wendy Hurlock Baker:
So, I think that any of the proceeds had to go to her. Yeah, I mean yeah, they’re not going to destroy the artwork, but it’s definitely like, “Oh, you probably don’t want to buy that one now.” Yes, it was damages essentially. They got paid damages.
Kathrin Halpern:
So, we are going to-
Wendy Hurlock Baker:
Also, for the recording once again, not lawyers, not legal advice.
Kathrin Halpern:
Okay. We see some more questions back there.
Speaker 11:
Yeah, [inaudible 00:39:19]?
Wendy Hurlock Baker:
That’s a really good question and I think that is something that should happen at accession. It’s also a little hard if it’s being donated. I think-
Kathrin Halpern:
Would you repeat the question just-
Wendy Hurlock Baker:
Oh yeah, sorry, I think… I just dive right in. The question was if you’re buying a piece and tag me if I’m wrong when I say this. If you’re bringing a piece into the collection, is the burden of copyright on the artist if they used third-party content or is that burden on the museum? I think sometimes it can be both. A lot of times artists are going to, again, not a lawyer, but a lot of times the artist, they can rely on some things that we as museums and organizations can’t necessarily rely on, which is why counsel weighing in is really good. So, displaying something that you brought in. For example, the Nash Museum of the American Indian has a really gorgeous ledger drawing by a really talented artist named Dallin Maybee. One of his pieces ledger art has done, it’s an old-style type of drawing that’s done on old ledger paper is a tour through Bikini Bottom and it uses all of the SpongeBob characters and gorgeous traditional dress. It’s amazing.
We purchased that piece. We’ve displayed that piece. I have locked down the other types of uses for that. That’s a conversation I need to have with our legal counsel, but it’s relatively new to the collection. So, it’s one of those things where I think in context, again, not legal advice, in context, it is probably fine. I had a related question to that. It just popped right in. Thank you for jogging my brain. I had somebody in our family and youth group of educators group ask if they can do a reproduction of it to put up in the kids’ section of the museum. I’m like, “No, that’s wallpaper. Absolutely not.” That’s decorative. If we’re going to hang the piece in there, sure. But who does that? Children or animals. But you don’t want ruin an original piece, but I understand the want to do that, but here’s what I’m going to do. I’m going to ask the artist if we can reproduce it and then get legal counsel to weigh in, “If it’s in situ, it’s in this part of the museum, can we make this?” It’s basically a fair use argument.
That’s why it’s a case-by-case basis.
Kathrin Halpern:
Absolutely. But also, to that question of working with the artists for example. So much of this also in your work around this, it’s building relationships. And it’s a lot easier, it’s a lot smoother when you have a strong relationship to go to the source, to talk to them, to say, “This is what we’re intending, this is what we’re hoping to do”, versus not having any kind of relationship. And also, when something goes a little less than ideally, perhaps having a strong underlying relationship, you might be able to say, “I’m terribly sorry. We will take this down, and we will make amends.” As opposed to immediately having a lawsuit on your hands.
Wendy Hurlock Baker:
And the relationship thing expands out too. If you’re bringing your accession agreements or your donor agreements or however that’s working, direct conversation with the rights holders of the artists, getting that incorporated at the beginning before you bring something into the collection is really, really helpful. And on the flip side of that, if you’re working with Getty Images or Alamy or Bridgeman, get to know your account managers, that conversation is going to go a lot better for you if you guys know each other already. They’re not the devil, they’re a business like any other. It’s just trying to get to something faster. Maybe there’s a discount, I don’t know, for educational use. Because what? All museum work is educational use, doesn’t mean we don’t have to pay for it.
Kathrin Halpern:
So, we’ve already talked a little bit about, but we’ve been talking about incoming, but it’s also outgoing. So, make sure that when people come and ask you about content that you have in your collections that they’re asking for, there’s a policy and that you’re following it.
Wendy Hurlock Baker:
If you’re going to talk the talk, walk the walk, right? So, if you have policies, procedures, forms around licensing out your content, even if it’s something about, “Here’s how you can use our file, but the onus of copyright is on you, the researcher or the requester.” Don’t be that guy. Don’t have your institution be that guy where you don’t do that. You don’t have that reciprocal relationship with other museums or orgs where you just take their stuff. Unless it’s an open access and they said you could.
Kathrin Halpern:
The most important slide. Know when you are out of your depth.
Wendy Hurlock Baker:
If you see terms that you have no idea what they mean, you’re out of your depth and that’s okay because it’s sometimes these things are drafted to be that way. Or things that commit you, this is a big one for anybody who gets federal funding or is on a yearly, an annual cyclical budget, it you to unspecified funds or penalties. That is a big problem because it’ll say something along the lines of, “Five times the amount at the value at the time of infringement.” Does anybody know what that means in this room? I mean if you take apart the sentence, it means that let’s say at the time of infringement, this thing was $250 to license. It’s five times that per infringement. You sent out 300 postcards. Do that math.
Kathrin Halpern:
Numbers get big very quickly. So, this is another slide you want to take a photo of.
Wendy Hurlock Baker:
Yeah, take a picture of this one.
Kathrin Halpern:
Most of these are websites. Anne Young’s book is a fantastic reference and it’s available in the AAM bookshop, if you don’t already have a copy.
Wendy Hurlock Baker:
And it’s another one of those Peter Hirtle-style bibles. It’s really, really good.
Kathrin Halpern:
And with that, we are at Q&A.
Speaker 12:
Hi. Thanks so much. I wonder if you could speak a little bit more about the intersection between museums and journalists. Those of us who work in media relations often send images to reporters who will republish those images and it’s not clear to me how if at all, that changes some of the larger rights issues that you’ve been talking about. I mean, I’ve always sort of assumed that there’s a general consensus that journalism is widely protected as a free speech category under the First Amendment in a way that doesn’t apply to educational institutions like ours. But maybe you can clarify some of the details on that.
Wendy Hurlock Baker:
That’s another, “Yes. No. Maybe. It depends.” But one of the things that you can do to ensure that back to Kat’s point about pre-planning is have a conversation with your marketing team about what they want to use. For the most part, if you’re talking about a press kit, you’re right, most of that’s probably going to be fine. However, if you’re going to do advertising, any type of paid advertising, if your marketing team wants to do a wrap on a bus, I mean I’m saying that because we’re in D.C., they want to slap it on the side of the metro. They want to do a Facebook placement which costs money. Those are technically commercial uses. So, you want to have those conversations upfront so you can license for it. Even with it being technically commercial, most of the places that you’re licensing from understanding that it’s to promote a nonprofit organization, it’s not going to end up being like a bajillion dollar usually.
Kathrin Halpern:
But this is definitely when you’re working on an exhibit, when you’re working on a new project, you have a long conversation with your marketing team around which images they would like to put out to press. One of the things that comes up frequently, make sure you have enough variety of images that can go out to press because if you have a project that lasts six years and you are using the same three images again and again-
Wendy Hurlock Baker:
Everybody’s bored. Everybody’s bored.
Kathrin Halpern:
Exactly.
Wendy Hurlock Baker:
But the other thing too is let’s say there’s press previews. If you have a me or a cat in your organization, just have them at the press preview. Just make sure it’s a long shot in situ. You’re not hyper focused on one thing. That stuff really helps too.
Kathrin Halpern:
And that’s also really important because you might have an exhibition, for example, at sites where we’re doing a lot of image licensing because we do not have our own collection. You might have an exhibition where some of the images are cleared and where some of the images have restrictions, and so you need to tell the photographer, “You can take a big swath image of the entire installation, but you cannot focus specifically on this one image. So, if you’re doing a photograph of that wall, move the camera by just a little bit so that it’s not in a shot.”
Wendy Hurlock Baker:
And we do this frequently with journalists and the press that come into the museum and yeah, that’s when I get invited down. They’re like, “Hey, can you come down here?” “Hi, I’m the thorn in your side, this side of the wall. This is fine. Shoot it long, don’t focus on anything.” Yeah, it’s pre-planning. Is what it really is, it’s pre-planning.
Speaker 13:
So, I work in an art conservation studio, and we take photographs of all the work before and after, during, detailed close-up images. Are there similar restrictions or things that I should be aware of when we use the material in social media or on the website or in print? And we also share a material with the client who might own that material.
Wendy Hurlock Baker:
I would recommend putting that into your contract that you will be using, and you can put parameters around it. It’s a very specific, “We’re going to show the before and after.” Whatever it is, but specific, if you put that into the contract or there’s a review process with the client that they can give you a set, just make sure it’s part of your portfolio. I think that that is probably your best bet in terms of getting those and everybody’s on notice.
Kathrin Halpern:
And it’s because there are different layers for taking the photographs so that you have your own record sharing those with the client. That is one layer. Publishing them in a scholarly journal, different set of rights that are connecting there. Putting it out on the internet, yet another-
Wendy Hurlock Baker:
Whole other thing.
Kathrin Halpern:
Yet another set of things.
Speaker 13:
And that’s inclusive of any artwork, whether it’s something that’s before 1930 modern, etc?
Wendy Hurlock Baker:
I think I would say from a rights perspective, not necessarily, but I think from a relationship and contracting perspective with your clients, it probably is. And that’s where I think, especially if you don’t know, I mean I would imagine because you do conservation, you guys are very well versed in what this thing is and the context around it, but let’s say it’s something that’s sensitive and we aren’t really sure how much of it can go out into the world or it’s female handle only or something like that. I think having that conversation with the client and codifying those turns into a contract is your best way to get those and be able to use them in a comfortable space.
Speaker 14:
Hi, thank you for this presentation. I have a question, and it might’ve been covered a little bit in some of the resources you gave, but I’m actually curious about how, if you have any advice on how you establish your own fee structure within your organization? I work at a very small place, but we have a very large archive and we are getting a lot of interest from places like Netflix and all of these streaming things trying to do filming in our institution and we’re not really sure how to charge them because it’s like Netflix worldwide and things like that. So just any thoughts about ways that we could try to unpack how to structure various requests from us?
Wendy Hurlock Baker:
I think that it’s like the inverse. So, I think when you’re talking about all the ways in which Netflix or another organization wants to use your content, if you think about anything that you’ve tried to go out and bring in and how it’s been broken down, that’s one way to do it. But I would advise with something large like that, counsel is probably worth it, especially to set up the terms of how they can use the content and for how long. Because I don’t know if it’s a documentary, this thing might be evergreen and you probably want, maybe that’s a little bit of a higher charge, but if it’s a documentary, depending on how big the crew is or whatever, I think you want to be able to have flexibility in the pricing, but the terms are really the thing that you want to be paying attention to.
Because to protect your own collection and to make sure that you’re as much as you possibly can future proofing that content, I think that’s really, that is where it is worth maybe charging a little bit upfront so that you can pay an attorney to help you guys’ draft something.
Kathrin Halpern:
And you may also want to think about the different types of uses that you’re looking at and having different types of pricing for those different sorts of things, but really working with an attorney to sort that out.
Wendy Hurlock Baker:
And some places to start are the big, go to Getty Images and just look at their pricing structure. Go to some of the places like the Smithsonian where generally licensing isn’t really it. It’s mostly, its cost recovery, so you’ll have a digitization fee just so that we can keep digitizing depending on the unit. Unless you’re Netflix and then we’re going to chew a lot more money. That’s a way for us to keep doing the work we do. Again, not an attorney, I didn’t mean that. But it sort of triangulate your resources and then maybe one next budget year, argue for a session or two with an attorney to help you draw that up and it’s a one-time deal and maybe review it in five years, something like that.
Speaker 15:
Include rights, so you can then use what your image is used for in your own marketplace.
Wendy Hurlock Baker:
Oh yes. Great point. Always make sure that if you’re giving something to somebody else to use that you can use whatever they use it in, at least to some degree.
Speaker 16:
Hi.
Kathrin Halpern:
Hello.
Speaker 16:
Hi. I don’t know if this question can be answered here, but I’m going to ask it. So, I’m the digital archivist over at the Phillips collection.
Wendy Hurlock Baker:
Oh, yeah.
Speaker 16:
So, for context, small museum opened in 1921 right now I sent all of our exhibition catalogs from the twenties up until 2000 out for digitization. My question is how many of those can be actually put online? I’ve kind of been looking at what the MET has done with their publications, like DIA and just other places. I’m going to mark things from the twenties in public domain, everything else right now I’m marking as in copyright. He wrote the essays in a lot of our early catalogs. So, I figured those are okay, but as we continue to move forward, kind of where should I stop making those available?
Wendy Hurlock Baker:
Do you have documentation on the contributors for moving forward in time?
Speaker 16:
Yes.
Wendy Hurlock Baker:
I think that going through that to see what the Phillips outright owns, where these things work for hire, things like that is really where you want to examine that level. Again, not a lawyer, not legal advice. However, if the Phillips outright owns that as work for hire, and that’s where it gets tricky. Where in the documentation does it say that? Are these contracts they got paid for work? What would be the determination? I think that’s where you can make, because if the Phillips owns it, you guys can do whatever you want with it. The images within that, that’s a little trickier. But if you’re setting it up like a database, a lawyer might let you do that.
Speaker 16:
Okay. Yeah, because I want to use the defense of GW. They publish a lot of the Corcoran’s catalogs on internet archive. So, if I put it into these other spaces, like in conversations-
Kathrin Halpern:
Yeah, this is the server test.
Speaker 16:
Is that what it’s called? Server test.
Kathrin Halpern:
This is definitely a conversation with an attorney, and it may also be a situation where you are looking at a chronology. So, you might have a bunch digitized now and you might have to create a plan for releasing things over-
Wendy Hurlock Baker:
Or modifying. Let’s say you do have work for hire for all the texts, just for a hypothetical, all of this is work for hire up to the current things. What you might want to do then is have whoever’s doing your digitization, make the artwork that is not part of that work for hire package, either blacked out, grayed out, reference link to it somewhere else, things like that. It’s a way to still present the content. I mean that is the presumption here is that you guys would own the rest of it. There’s a way to do that moving forward, but it does require some digging and you’re going to have to, it’s a bit like a puzzle piece. So, I get why you’re saying, “I don’t even know if you can answer this right now.” It is case by case, but you could have a plan. There’s definitely a way to do a plan for that. Okay.
Speaker 16:
All right, thank you.
Speaker 17:
I have a question related is there a distinction between having something available online for I have something digitized, and it’s delivered upon request. So, it basically first it could come in person and look at it, but I have a digitized, so I just send it to them. They’re not necessarily doing anything other than looking at it. It’s not available online to download.
Wendy Hurlock Baker:
Would you send it to them or would it be on some sort of secure, oh God, I almost said FTP. That’s how old I am, an FTP site. Those of you in the room know what that is, your back also hurts.
Speaker 17:
We use an external hold drive.
Wendy Hurlock Baker:
So again, one more time. Not legal advice. I would say that if it is in a controlled environment digitally where there is no chance of this thing getting loose, it’s not on the internet. You’re giving somebody access to something that’s locked down. That is probably all right because it’s a type of archival or library service essentially, and that’s protected by, I’m going to whip it out section 107 and 108 of the copyright law. But however, if you are sending it, that’s different. That’s the type of distribution. So, you might want to consider ways of delivering that content that’s not delivering it.
Kathrin Halpern:
All right. We have our last question because we are at time.
Wendy Hurlock Baker:
Thank you guys for asking questions. This is such a boring topic.
Speaker 18:
Hi, I’m from the National Hispanic Cultural Center, and I have a question about a civic piece we have. We recently found out that the artist that made the piece actually painted a lowrider that somebody else owns in the piece, and obviously lowriders are art. So, it’s kind of an interesting dilemma because the piece is a self-portrait of the person in front of the lowrider, but he didn’t necessarily get permission to paint the lowrider in a piece that’s now in our permanent collection. So, I guess would we need to get permission from not only the artist, but also the person who owns the lowrider in the piece?
Wendy Hurlock Baker:
What do you want to do with it?
Kathrin Halpern:
I was about to say this is a yes, no, maybe-
Wendy Hurlock Baker:
It depends. What do you want to do with it?
Speaker 18:
This is one of the hallmark collections of the NHCC, this particular artist, and using it in a catalog, using it. We already don’t allow pictures of the piece in the museum because that’s what the artists himself requested for any of the pieces of his in our collection. But I don’t think that he thought about the lowrider owner’s rights as well. So, we just want to honor those as well.
Wendy Hurlock Baker:
That’s a really interesting one. I think that that would probably break out into use case. So, if you’re displaying it, I think that there’s precedent for that. If you are in context discussing it probably in a catalog or something related to the collection item and calling out all of the creators, like the lowrider creator, the artists who painted it. I think those things, you probably have a very good fair use argument. Again, not a lawyer, but there are other things that I would be more wary about, which it sounds like you already are, I think commercial uses of that. You might need to have a conversation with that. Is it a painting? Is the lowrider in the painting?
Speaker 18:
Yes, it’s an oil painting.
Kathrin Halpern:
And that also, there again, is an example of trust and community building. So, in some cases you may not technically need to get permission from the artist who did the lowrider, but for the purposes of community building and trust building, it doesn’t hurt to do that.
Speaker 18:
Yes.
Wendy Hurlock Baker:
Yeah, that’s a great point. And that’s actually a really good point to on, because this really is all about that, right? It’s about asking the right people the right questions when you can and intent when you can, what’s the intent? Right?
Kathrin Halpern:
So, with that, we are at time. Thank you all very much for being here.
This recording is generously supported by The Wallace Foundation.
