Glossary

3.3 Legal Issues and Intellectual Property Rights

5 min read•july 29, 2024

Legal issues and intellectual property rights are crucial aspects of curatorial work. Curators must navigate laws, , and licensing agreements to protect artists' rights and avoid legal pitfalls. Understanding these concepts is essential for ethical and professional exhibition planning.

Proper management of intellectual property involves developing clear policies, securing permissions, and training staff. Curators must also consider artist rights, cultural heritage laws, and accessibility requirements. These practices ensure legal compliance and respect for creators and cultural heritage.

Intellectual Property in the Arts

Types of Intellectual Property Protection

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  • Intellectual property refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce
  • The main forms of intellectual property protection are:
    1. Patents
    2. Copyrights
    3. Trademarks
    4. Trade secrets
  • Copyright law grants exclusive rights to the creator of an original work, including the right to reproduce, distribute, perform, display, and create derivative works
  • Copyright protection is automatic upon creation and fixation of the work in a tangible medium
  • The duration of copyright protection varies by country and type of work:
    • In the United States, copyright generally lasts for the life of the author plus 70 years
    • For works made for hire, anonymous works, or pseudonymous works, the copyright lasts for 95 years from the year of first publication or 120 years from creation, whichever is shorter

Fair Use and Moral Rights

  • The doctrine of fair use allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research
  • Four factors are considered in determining fair use:
    1. The purpose and character of the use
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used
    4. The effect of the use upon the potential market for or value of the copyrighted work
  • protect the personal and reputational value of a work to its creator
  • The two most widely recognized moral rights are:
    1. The right of attribution (the right to be credited as the author of a work)
    2. The right of integrity (the right to prevent distortion, mutilation, or modification of a work that would prejudice the author's honor or reputation)

Permissions and Licensing

  • Curators must obtain permission or a license to use copyrighted materials in exhibitions, publications, and promotional materials, unless the use falls under an exception such as fair use
  • Failure to secure necessary permissions can result in infringement claims and legal liability
  • licenses provide a standardized way for copyright holders to grant permission for others to use their work under certain conditions
  • The six main Creative Commons licenses range from the most restrictive (Attribution-NonCommercial-NoDerivs) to the most accommodating (Attribution only)

Orphan Works and Public Domain

  • Orphan works are copyrighted works whose owner cannot be identified or located
  • The use of orphan works poses legal risks, as the copyright holder could emerge and claim infringement
  • Some countries have adopted orphan works legislation to facilitate the use of these works by cultural institutions (United Kingdom, European Union)
  • The consists of works that are not protected by copyright, either because the copyright has expired, the works were created by the federal government, or the works did not meet the requirements for copyright protection
  • Works in the public domain can be used freely without permission

Open Access

  • Open access refers to the practice of making research outputs, such as scholarly articles and datasets, freely available online with minimal restrictions on use and reuse
  • Open access can help curators identify and incorporate current scholarship into exhibitions and programs
  • Examples of open access repositories include:
    • arXiv (physics, mathematics, computer science)
    • PubMed Central (biomedical and life sciences)
    • Social Science Research Network (social sciences)

Intellectual Property Management for Exhibitions

Policies and Procedures

  • Intellectual property policies should address ownership, attribution, licensing, and fair use of copyrighted materials in exhibitions, publications, and promotional materials
  • These policies should be consistent with the museum's mission, values, and legal obligations
  • Procedures for securing permissions and licenses should include:
    1. Identifying copyright holders
    2. Negotiating terms of use
    3. Maintaining records of agreements
  • Curators should work closely with the museum's legal counsel and rights and reproductions staff to ensure compliance

Agreements and Digital Asset Management

  • Agreements with artists, lenders, and other collaborators should clearly specify the rights and responsibilities of each party with respect to intellectual property
  • These agreements may include provisions on:
    • Copyright ownership
    • Credit lines
    • Reproduction rights
    • Royalties
  • Digital asset management systems can help museums track and control the use of copyrighted materials in their collections and exhibitions
  • These systems should include metadata on intellectual property rights, restrictions, and expiration dates

Staff Training

  • Staff training on intellectual property issues is essential to ensure consistent application of policies and procedures across the organization
  • Training should cover:
    • Basic copyright principles
    • Fair use
    • Licensing
    • The museum's specific policies and protocols
  • Regular updates and refresher courses can help staff stay current with changes in intellectual property law and best practices

Artist Rights and Cultural Heritage Laws

  • The grants moral rights to artists, including the right to claim authorship and prevent the destruction or alteration of their works
  • Curators must be aware of VARA when planning exhibitions and installations that involve site-specific or commissioned works
  • The requires museums to identify and repatriate Native American cultural items, including:
    1. Human remains
    2. Funerary objects
    3. Sacred objects
    4. Objects of cultural patrimony
  • Curators must ensure compliance with NAGPRA when acquiring, researching, and exhibiting Native American collections

Provenance and Accessibility

  • The restricts the import of cultural property that has been illegally exported from its country of origin
  • Curators must perform due diligence to ensure that objects acquired for the collection or borrowed for exhibitions have a legal and ethical provenance
  • Accessibility laws, such as the Americans with Disabilities Act (ADA), require museums to provide equal access to exhibitions and programs for visitors with disabilities
  • Curators should work with accessibility specialists to design inclusive exhibitions that comply with ADA standards (audio descriptions, tactile elements, large print labels)

International Exhibitions and Loans

  • Export laws and regulations may restrict the movement of certain cultural objects across borders
  • Curators must obtain necessary export permits and licenses when organizing international exhibitions or loans
  • Compliance with any restrictions or conditions imposed by the relevant authorities is essential
  • Examples of cultural objects that may require export permits include:
    • Archaeological artifacts
    • Ethnographic materials
    • Rare manuscripts and books
    • Paintings and sculptures over a certain age or value threshold

Key Terms to Review (22)

Campbell v. Acuff-Rose Music, Inc.: Campbell v. Acuff-Rose Music, Inc. is a landmark Supreme Court case from 1994 that addressed the issue of fair use in copyright law. The case revolved around whether 2 Live Crew's parody of Roy Orbison's song 'Oh, Pretty Woman' qualified as fair use. This decision played a crucial role in shaping the understanding of how copyright law applies to transformative works and established important precedents regarding the balance between copyright protection and freedom of expression.
Convention on Cultural Property Implementation Act (CPIA): The Convention on Cultural Property Implementation Act (CPIA) is a United States federal law enacted in 1983 that aims to protect and preserve cultural property by implementing the UNESCO 1970 Convention. This law allows the U.S. to impose import restrictions on archaeological and ethnological materials from countries that request assistance in protecting their cultural heritage. The CPIA establishes a framework for addressing the illegal importation of cultural property, aligning U.S. law with international efforts to safeguard cultural heritage.
Copyright: Copyright is a legal right that grants the creator of original works exclusive control over the use and distribution of their creations, such as literature, music, and art. This protection is vital in safeguarding intellectual property, allowing creators to benefit financially from their work while preventing unauthorized use by others. Copyright plays a crucial role in the broader landscape of legal issues and intellectual property rights by balancing the interests of creators with public access to knowledge and culture.
Copyright Act: The Copyright Act is a law that provides legal protection to the creators of original works, granting them exclusive rights to use, reproduce, and distribute their creations. This act plays a critical role in safeguarding intellectual property rights, ensuring that creators receive recognition and financial benefits from their work while also establishing guidelines for the fair use of copyrighted materials by others.
Creative Commons: Creative Commons is a nonprofit organization that provides free, legally sound tools and licenses to enable creators to share their work while maintaining certain rights. This allows artists, educators, and others to give permission for their work to be used in specific ways without the need for individual agreements, promoting sharing and collaboration. Creative Commons licenses help to clarify the legal framework around copyright, thus impacting how intellectual property is shared and utilized across various fields.
Ethical sourcing: Ethical sourcing refers to the practice of ensuring that products are obtained in a responsible and sustainable manner, taking into account the social and environmental impacts of their production. This approach emphasizes fair labor practices, environmentally friendly processes, and respect for local communities and cultures. Ethical sourcing connects deeply with issues of legal compliance and intellectual property rights, as it often involves ensuring that materials are acquired without infringing on rights or exploiting individuals.
Fair Use: Fair use is a legal doctrine that allows limited use of copyrighted material without requiring permission from the rights holders. It serves as a balance between the rights of the copyright owner and the public's interest in accessing information, promoting creativity, and enabling scholarship. Fair use is particularly relevant in contexts like education, criticism, commentary, news reporting, and research.
Harper & Row Publishers v. Nation Enterprises: Harper & Row Publishers v. Nation Enterprises was a landmark Supreme Court case decided in 1985 that addressed the limits of fair use in copyright law. The ruling emphasized the importance of protecting an author's rights and the original expression of their work, particularly in the context of unauthorized reproduction of excerpts from unpublished works. This case is crucial for understanding the legal boundaries around intellectual property and how they impact publishing, journalism, and creativity.
Lawrence Lessig: Lawrence Lessig is a prominent American legal scholar, professor, and political activist known for his work on copyright law and the intersection of law and technology. His advocacy for reforming copyright laws reflects a broader concern about the impact of intellectual property rights on creativity, innovation, and free culture, which is crucial in understanding the evolving landscape of legal issues and intellectual property rights.
Licensing Agreement: A licensing agreement is a legal contract between two parties where one party grants the other the right to use, produce, or sell a product, service, or intellectual property. This agreement typically outlines the scope of use, duration, financial terms, and any limitations or conditions. Licensing agreements are essential in protecting intellectual property rights while allowing for commercial use and collaboration.
Moral rights: Moral rights are the rights of creators to protect their personal and reputational interests in their works, beyond economic rights. These rights typically include the right to attribution, ensuring that the creator is recognized for their work, and the right to integrity, which allows them to prevent alterations or derogatory treatment of their work that could harm their reputation. Moral rights are essential in maintaining the connection between an artist and their creation.
Native American Graves Protection and Repatriation Act (NAGPRA): The Native American Graves Protection and Repatriation Act (NAGPRA) is a U.S. federal law enacted in 1990 that aims to protect Native American graves and ensure the repatriation of ancestral remains and cultural items to their respective tribes. This act recognizes the rights of Native Americans to reclaim their cultural heritage and seeks to address historical injustices related to the treatment of indigenous remains and artifacts, tying into broader legal issues surrounding cultural ownership and intellectual property rights.
Patent: A patent is a legal right granted by a government to an inventor, giving them exclusive rights to make, use, sell, or distribute their invention for a specific period, usually 20 years. This exclusive right protects the inventor’s creation from being copied or exploited by others without permission, encouraging innovation and creativity. Patents are an essential aspect of intellectual property rights, helping to foster advancements in technology and various fields by rewarding inventors for their contributions.
Permission Request: A permission request is a formal process of seeking approval to use, reproduce, or distribute intellectual property owned by someone else. This is essential in the realm of legal issues and intellectual property rights, as it protects the rights of creators and ensures that their work is used ethically and legally. Understanding how to properly make permission requests is crucial for curators and others in creative fields to avoid potential legal ramifications.
Peter Jaszi: Peter Jaszi is a prominent legal scholar and expert in copyright law, recognized for his significant contributions to the field of intellectual property rights. His work often emphasizes the balance between creators' rights and the public interest, particularly in the context of copyright reform and fair use. Jaszi's insights help shape the understanding of how copyright laws interact with creativity and cultural production.
Public Domain: Public domain refers to creative works that are not protected by intellectual property laws, allowing anyone to use, modify, and distribute them without seeking permission or paying royalties. This concept plays a critical role in promoting accessibility and encouraging creativity, as it enables the free exchange of ideas and resources across various fields, including art, literature, and education.
Trademark: A trademark is a recognizable sign, design, or expression that identifies products or services of a particular source from those of others. It serves as a valuable asset for businesses by protecting brand identity and ensuring consumers can distinguish between competing products. Trademarks can include logos, names, slogans, and even sounds or colors, reflecting the quality and reputation of the brand associated with them.
Trademark law: Trademark law refers to the legal framework that protects distinctive symbols, words, phrases, or designs used to identify and distinguish goods or services of one party from those of others. This law ensures that consumers can reliably identify the source of a product and helps prevent confusion in the marketplace, supporting fair competition.
Transparency in provenance: Transparency in provenance refers to the clarity and openness regarding the history and ownership of an artwork or cultural object. This concept is crucial in ensuring that all aspects of an object's background, including previous ownership, exhibition history, and any relevant legal transactions, are disclosed to the public and stakeholders. By promoting transparency, institutions can foster trust and ethical practices in the art world, while also addressing issues related to legal rights and intellectual property.
U.S. Copyright Office: The U.S. Copyright Office is a government agency that administers copyright law in the United States, overseeing the registration of works and providing information about copyright laws and procedures. It plays a crucial role in protecting the rights of creators by ensuring their intellectual property is registered and granting them exclusive rights to use and distribute their original works. This office helps to clarify legal issues surrounding copyright, contributing significantly to the understanding of intellectual property rights.
Visual Artists Rights Act (VARA): The Visual Artists Rights Act (VARA) is a U.S. law enacted in 1990 that grants specific rights to visual artists, including the right to attribution and the right to integrity regarding their works. VARA is significant as it aims to protect the moral rights of artists, allowing them to control how their artworks are used and displayed. This act is crucial in the realm of legal issues and intellectual property rights as it addresses the intersection of creative expression and legal protection for artists.
World Intellectual Property Organization (WIPO): The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations that aims to promote the protection of intellectual property (IP) rights worldwide. It plays a crucial role in establishing international IP agreements, facilitating cooperation among countries, and providing resources and training to help nations develop their own IP systems.
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