Dear ARLIS/NA,
Thanks for all your helpful answers.
It does sound like several institutions are sharing digitized images of photographs on the web for which they don't have copyright ownership (w/ explicit or implied utilization of fair use.)
See below for examples of wording these institutions use to:
1. explain the difficulty of determining copyright,
2. waive their liability,
3. transfer responsibility to the enduser, and
4. ask for right-holders to come forward and claim "orphan" photographs.
Sincerely,
Kim
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I work at George Mason University Special Collections and Archives and we are currently digitizing a collection of ~300 photos that are snapshots / scrapbook photos from the 1940s. Staff from the libraries found the collection in a dumpster some years back so they are orphaned works. We are planning to put these images online using our digital asset management system (LUNA) under an assertion of fair use and our rights statement will look like:
"This work may be protected by copyright laws and is provided for educational and research purposes only. Any infringing use may be subject to disciplinary action and/or civil or criminal liability as provided by law. If you believe that you are the rights-holder and object to Mason's use of this image, please contact [log in to unmask]<mailto:[log in to unmask]>."
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We, at the Charles Voorhies Fine Art Library, are working on a digitization project of a number of slides that were part of a slideshow for an oral history project that includes a bunch of our more esteemed faculty. Some of the photos were taken by the interviewers, but a large number of them are of uncertain provenance. Here's the text we're including with each image:
Reproductions are intended for personal use, study, research or classroom teaching. Any fair use, as defined by copyright law (http://www.copyright.gov/fls/fl102.html), is acceptable.
Copyright of photographs may be difficult to determine. In many instances PNCA is not the rights holder under copyright law. Therefore, it is unlikely that we will be able to grant permission for publication, exhibition, or reproduction; nor can we guarantee the photograph is in the public domain. Users must assume full responsibility for questions of potential copyright violation in their use of the photograph.
At this time, our images are not available to the public, but there are plans to have some of them available in the future.
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I'm sure you know of the Flickr Commons project piloted by the Library of Congress. Their licensing is a specialized one on Flickr, something like 'no known copyright.' They essentially use the 'due diligence' argument to release the work into the public domain. I'm not saying you need to join the Commons, but you could certainly look into the legal implications of using a similar license warning. The Rijksmuseum in Amsterdam is doing something even more interesting, which is asserting that their collections are in the public trust, and thus high-res downloads are being made free for non-commercial use. You can either make your users aware of an 'at your own risk' use and waive your own liability after due diligence in finding copyright limitations, or you can show your institution isn't making a profit and isn't allowing anyone else to do so.
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We, at the New Orleans museum of Art., are in the same boat here (digitizing about 10,000 pieces objects for display on the web) many of which we do not have official permission to display online (yet). We are choosing NOT to publish high resolution images of work we do not explicitly have rights for, but we are publishing thumbnail images with our "tombstone" information for some objects online.
While many instituions use "fair use" for both orphan and copyrighted work LACMA immediately comes to mind as the most recent institution to launch a substantial collection online for research, etc.
Here is their terms of use page:
https://www.lacma.org/about/contact-us/terms-use
The first two paragraphs sum up nicely how they are handling it:
TERMS AND CONDITIONS
Conditions of Use: Access to and use of LACMA's Content (as defined below) on this Site are subject to the following Terms and Conditions:
1. The text, images, and data, including without limitation audio and video clips, software, documentation, and other information contained in the files on this Site (collectively, the "Content") are either (1) images of works from LACMA's collections that LACMA believes are in the public domain, some of which are made available without restriction (these images are marked "Public Domain High Resolution Image Available" as described below); or (2) protected by copyright (the "Protected Content"). Such Content, whether or not in the public domain, may be subject to other restrictions as well, including rights of privacy and publicity, under applicable law.
a. "Public Domain High Resolution Image Available": The Content on the Site marked "Public Domain High Resolution Image Available" consists of images of works from LACMA's permanent collections that are currently available in "high resolution" format and that LACMA believes are in the public domain. LACMA is providing high resolution images of these works free of charge and for use without restriction. The Public Domain High Resolution Image Available mark indicates that LACMA is unaware of any current copyright restrictions on the Content so designated, either because (i) the term of copyright has expired, (ii) no evidence has been found that copyright restrictions apply, or (iii) LACMA owns copyright but would like to share this Content with the public without exercising control as part of our mission to engage and educate our communities. LACMA does not warrant that the sharing or other use of this Content will not infringe upon the rights of third parties holding rights to these works, including rights other than copyright, such as rights of privacy and publicity. It is your responsibility to determine and satisfy copyright and other use restrictions before downloading, copying, transmitting, publishing or making any other use of these items. If you have any knowledge about rights holders of any of these works, please contact LACMA's Rights and Reproductions Department at [log in to unmask]<mailto:[log in to unmask]> or (323) 932-5862. Users should cite the author/artist and source of the Public Domain High Resolution images as they would material from any printed or other work, and citation should include the URL Error! Hyperlink reference not valid.<http://www.lacma.org%20in/> addition to all other proprietary notices, if any, provided with the Public Domain High Resolution images.
Also, most institutions follow the Digital Millenium Copyright Act (DMCA) of 1998 and explicitly state so in their terms of use.
Here is the Met's: http://www.metmuseum.org/information/terms-and-conditions
10. Digital Millenium Copyright Act (DMCA). The Museum is committed to complying with U.S. copyright and related laws, and requires all users of the Site to comply with these laws. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 ("DMCA") to report alleged infringements. A copyright owner of any content should contact the Museum immediately to report any concerns of infringement by providing notice to the Museum's Designated Agent as required by the DMCA, Title 17 U.S.C. § 512. If such notice is provided by email please address it to: [log in to unmask]<mailto:[log in to unmask]>; if such notice is by mail, please address it to: Designated Copyright Agent, Office of the General Counsel, The Metropolitan Museum of Art, 1000 Fifth Avenue, New York, NY 10028.
Also of note is how European countries are handling Orphan works and JISC in the UK has some great resources dealing with digital archives.
http://www.jisc.ac.uk/publications/programmerelated/2011/orphanworksbp.aspx
Lastly, the Copyright office has some good info on mass digitization and orphan works:
http://www.copyright.gov/docs/massdigitization/
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While this isn't a direct answer to your question to the ARLIS list, I thought it might serve as a helpful resource as you explore the topic. http://online.vraweb.org/vrab/vol39/iss2/4/
Molly Tighe, Mattress Factory Museum, Archivist
Pittsburgh Symphony Orchestra, Archives Consultant
I do not work for MOHAI (Seattle's Museum of History and Industry) but their online photograph collection asserts fair use in their Terms & Conditions - you can click on the appropriate link on their Photo Archive Search website: http://www.mohai.org/research/photo-archive-search to see the specific language they use and their staff is always helpful in responding to queries.
From: <Collins>, Kim Collins <[log in to unmask]<mailto:[log in to unmask]>>
Date: Wednesday, June 12, 2013 2:02 PM
To: ARLIS/NA List <[log in to unmask]<mailto:[log in to unmask]>>
Cc: Lisa Macklin <[log in to unmask]<mailto:[log in to unmask]>>
Subject: Fair Use and Photo Archives on the Web
Dear ARLIS/NA,
I am working with Lisa Macklin in Emory's Scholarly Communications Office exploring options for making a photo collection available online.
Many of these photos are orphan works. Of course, we will seek permission when we know the photographer and the photograph is still protected by copyright. But, seeking permission for many of these photos just isn't an option.
Can anyone point to examples of digitized photo collections owned by either a library or museum which are being made available on the web under an assertion of fair use?
Please reply directly to me, Kim Collins, at [log in to unmask]<mailto:[log in to unmask]>, and I will summarize for the list, if I get some answers.
Thanks, as always, for your assistance.
Kim
Kim Collins
Robert W Woodruff Library
Emory University
(404)727-2997, [log in to unmask]<mailto:[log in to unmask]>
and
Lisa A. Macklin, MLS, JD
Director, Scholarly Communications Office
Emory University Libraries
540 Asbury Circle
Atlanta, GA 30322
404-727-1535
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