The Photos We Take with Our Cameras
"...it is too easy to pull out your camera to take photos and post them on the Internet."
We take pictures of everything these days. We take photos of the places we go. We take photos of the important and the mundane in our kids' lives. We take "selfies." We regularly photograph our pets, our friends, our homes, and our workspaces. Our lives are threaded with visual documentation of so much of what we see. This is a new phenomenon. Film was once expensive. Photos were for special occasions such as birthdays, weddings, and proms. Snapshots were for vacation. Today, we carry a palm sized camera everywhere we go. There is no film and processing required and therefore images are cheap and easy. We take pictures every day. We take many, many pictures everyday. Our cameras are an extension of ourselves. They are a regular part of how we interact with the world - like a sixth sense. Sometimes we forget that the cameras are helping us cross borders. They allow us to more intimately experience things that are apart from us. Because of this, we can easily forget that that photos of things that do not belong to us might be legally off-limits to our use, manipulation, and online publishing.
Have you ever been to a museum that has asked you turn off a flash, put away your camera or sign a permission form before you take photographs? Or, are you part of an institution that limits picture taking on the premises? Institutions put these restrictions in place to protect their items. Some restrictions, such as the use of a flash, protect the physical structure of items that can be harmed by light. Other limitations, that are often written into the same photo-taking policies as the restrictions that help preserve an item, are there to protect intellectual property rights. These rights relate to the person or institution that owns the ideas behind an item. These policies are an attempt for institutions to retain some control over their ownership of an item and may be trying to exert the a legal copyright they hold.
A Proliferation of Images
"...permission should be sought from [collecting institutions] and the best photos possible should be used."
I recall in the early 1990s when visitors to the Museum of Fine Arts, Boston were amazed by the life-sized images that were taken with a new special camera that provided intense detail. An example of what the camera could produce hung outside a secondary museum shop during a blockbuster exhibit. There was much talk about how reproductions such as this would affect the art world. Would such lifelike images replicate actual paintings so easily that the original item would lose its value?
We have really come a long way since then...
Those who care for artifacts now wonder if their works can retain their value due to a proliferation of images. We take for granted our abilities to produce items that look so much like the real thing. Today, I believe that most patrons of cultural heritage institutions are interested in an image of an object that they can take with them. They want pictures that remind them of special times and ideas. I believe that the quality of the image is less important to the typical visitor. We just want a copy that we can call our own, whether we take it ourselves or "borrow" an image created by someone else.
Saving an image taken by another to our own computer, posting it on our blog, or "pinning" it allows us to claim some ownership over an object. It is a way for us to remember and to retain a bond with something meaningful to us. However, an image we take goes beyond solidifying a memory or connection. By taking or sharing images, we sometimes cross a prohibitive legal boundary.
Copyright is a sticky subject. Most people are not intending to steal someone's intellectual property rights. Most people don't know what this means. In fact, copyright is a tricky issue for professionals and is a topic that has been rolling around courts for centuries. [Want an interesting view into the subject? See Piracy: The Intellectual Property Wars from Gutenberg to Gates.] It is up to individuals to make themselves aware of the general gist of copyright law and to understand exactly how a proliferation of images of our material culture effects us and the institutions we trust to hold our cultural heritage.
When a museum shares a photo of an artifact it owns, it tries to put its best foot forward. It wants to share a good photo so that people can better understand an object. A museum hopes that those who experience an image in a book or online will be interested enough to come see the object in person. When someone else takes a picture of an object, the museum loses at least some of its control. A snapshot does not necessarily help the museum put its best foot forward. A snapshot may devalue the original through multiple sharings online. It seems less special when we see it everywhere. Low quality images also may not relate the specialness of an original item and may not encourage individuals to seek out more information or take a visit. However, these days, most museums recognize that this proliferation of images is a fact of life and that there are advantages to allowing images to spread for indeed more people become aware of an object's existence. If we are smart as cultural heritage professionals, we can generally work that to our advantage.
The serious researcher, the reliable blogger, and the good digital citizen makes sure that they provide information about the owner of the original object. This helps support culture, assists the reader in gaining a better understanding of the items, and helps keep the writer within the parameters of copyright law's intentions. The more people understand this, the better we can all collaborate to protect those who protect our material culture.
The Photos We Take from Others
"...policies should be in place for the handling and publication of materials before such publication is done."
It is easy to copy and paste someone else's image, but when we do this it is possible to break copyright in two ways: For one, the original may be under copyright protection and we do not have the right to show it. Additionally, the image taken of the original may also be under copyright. When using images one finds online, it is advisable to trace down the owner of the original item and the owner of the image.
When working with originals, one should seek the exact wording an institution would like to see with the publication of an image of an item in its collection. On the other side, an institution should provide this information readily. It should state clearly on its web pages, in its libraries, and galleries if it has a copy of an image available for publication. Cultural institutions can help people help them put their best images out to the public. For works under copyright protection, organizations should carefully choose and outline wording that claims their ownership and notes their authority for granting publication rights. Organizations should require that a statement of ownership be used whenever they permit an item in their collection to be published. Once works pass into the public domain [see next section of article], repositories may request the courtesy of a citation listing where the material is held and other appropriate information.
Policies should also state how cameras can be used in the institution. Many archives do not allow the use of cameras in their reading rooms just as museums do not allow photography. For archival documents, people sometimes want to bring in hand scanners. Cultural institutions should clearly outline if this is allowed in the institution.
Sometimes, a cultural institution may own a physical item but may not own the right to publish from the material or to use it without the intellectual property owner's permission. When a donor gives materials to a repository, the repository should ask that donor to sign over physical and intellectual property rights. Otherwise, each time the institution wishes to use the material or allow researchers to publish from it, they must contact the intellectual property owner. Institutions should avoid whenever possible taking materials into custody for which they do not know the intellectual property owner and the copyright holder. The parameters surrounding a document's physical and intellectual property should be made clear to users and visitors. If ownership is unclear (i.e. material is housed by the repository, but it does not own physical and/or intellectual property rights and the provenance of the material is unknown - as often happens in smaller repositories / historical societies) the user of the item must make a reasonable effort to identify the owner of the copyright before publishing the material.
A Few More Guidelines re: Copyright
Many people think only of published material as possessing copyright. This post has focused on unpublished materials because the law grants them copyrights too. The revised copyright law, which took effect in 1978, provides protection for all unpublished material for the life of the author plus seventy years. [Cornell University provides a useful table describing the basics of the law, the law as it applies to diverse formats, and a bibliography for more information.]
Orphan works are also afforded copy protection, but their status is the subject of much discussion - and if more up in the air than other materials under protection:
The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions. [U.S Copyright Office - Copyright of Orphaned Works March 30, 2014]
After a defined period of time (see Cornell chart) works slip into the public domain. Copyright was never meant to give creators and their descendants absolute and forever ownership of materials. Copyright is intended to protect originators so that they may profit from their ideas (monetarily or intellectually) and then their ideas can be shared with society so that our civilization benefits. Individuals can take the ideas of others and expand upon them, with the hope that we can learn from each other and create bigger and better ideas.
There has always been much debate about what works are afforded copyright status, who benefits from the copyright of an item, and how long materials should be copyrighted. With our rapidly changing information society, it is guaranteed that the debate will rage on and get even hotter.
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I am not a lawyer. The information in this blog post is from my twenty years experience as an archivist and my experience working with archives, museums and libraries. I welcome clarification and discussion. Anyone looking for more detailed and expert information see The Librarylaw Blog , which is a great source for Copyright information in the field of library and information science.
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