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<h1 id="archiving-artist-spaces-copyright-guide">Archiving Artist Spaces
Copyright Guide</h1>
<p><a href="assets/archiving-artist-spaces-copyright-guide.pdf">This
guide is also available as a downloadable PDF</a></p>
<h3 id="the-guide">The Guide</h3>
<p>Archiving is generally a low risk endeavor from a copyright law
perspective. However, this guide contains 3 key steps to further
minimize the risk of running into copyright issues when documenting and
archiving text, photos, and other information about preexisting artist
spaces.</p>
<p>Step 1: Document source information.</p>
<p>Step 2: Ask for permission or provide notice.</p>
<p>Step 3: Design the archive to favor fair use (a legal doctrine that
permits copying in certain instances).</p>
<h2 id="step-1-document-source-information-for-works.">Step 1: Document
source information for works.</h2>
<p>Prepare a spreadsheet tracking each copyrighted work you want to
archive. Works can be listed individually or when similar from a
copyright point of view, in groups. These works may include photographs,
written descriptions, documentaries, logos, etc. Any underlying works
that appear in the work (for example, a painting that was photographed)
should also be tracked.</p>
<p>For each, include as much information as you have. This documentation
will help both with gathering permission when possible and with
assessing the risks of using these works in the archive. See Appendix A
for a sample spreadsheet.</p>
<h3 id="the-information-collected-should-ideally-include">The
information collected should ideally include:</h3>
<ul>
<li><p>The source/location of the work;</p></li>
<li><p>The year the work was published and whether there is a copyright
notice on the work (if published before March 1, 1989); and</p></li>
<li><p>The creators and/or copyright owners of the work, including
whether you were involved in the creation of the work.</p></li>
</ul>
<h3 id="types-of-copyright-ownership">Types of Copyright Ownership</h3>
<p>There are three relevant categories of copyright ownership that you
can track in the spreadsheet: (1) individual artists; (2) works made for
hire; and (3) joint or collective authors. For each, the approach
differs slightly.</p>
<p>1. Individual Artists: Typically, the copyright owner of a work is
the author or artist who created it. If you believe the creator is the
copyright owner, record their name and contact information. If an
individual or institution has purchased the copyright from the artist,
they are now the copyright owner of that work. This should include works
obtained from copyright owners you know or are collaborating with on the
archive, or obtained from someone who knows them, since they are lower
risk if you can obtain permission for using those works.</p>
<p>2. Works Made For Hire: Sometimes institutions for whom artists work
become the copyright holder instead of the artist. Consider whether the
copyright holder might be an institution or individual different from
the artist who created the work because the work qualifies as a work
made for hire. A work made for hire is a work prepared within the scope
of an employee's job or is created via contract that explicitly assigns
copyright to the contractor (see Appendix B for more information). For
works made for hire, get documentation of that relationship – this may
be contracts, payment, or anything that establishes the works were done
on the date or for the purpose for which they were hired.</p>
<p>3. Joint and Collective Authorship: Some works have multiple authors.
If you contributed to a work with the intent that your contributions and
those of others be merged into one work, you may be considered an author
of that work and hold an equal claim in its copyright and there is
therefore no risk of using the work. See Appendix C for additional
information on the definitions of joint and collective works.</p>
<h2
id="step-2-seek-permission-from-or-give-notice-to-copyright-holders-when-possible-and-practical.">Step
2: Seek permission from or give notice to copyright holders when
possible and practical.</h2>
<h3 id="permission">Permission</h3>
<p>If you have explicit documented permission from a copyright holder to
archive their work, there is no risk of copyright infringement. Written
permission, often called a “license”, binds the copyright owner and
often those who may take over copyright ownership after them, so if they
sell their copyright or change their mind about permitting use of their
works in the archive, you won’t face any issues down the road. A request
for a formal license is ideal, but written permission via email is often
enough for most courts. For an example email, see Appendix D.</p>
<h3 id="notice">Notice</h3>
<p>If asking for permission is not desirable or feasible, it also
minimizes risk to send a notice to copyright holders of your archiving
activity. Notification is useful in two ways. First, it strengthens your
argument that use of their work is a “fair use.” Second, it starts
running the statute of limitations (a legal doctrine that limits the
amount of time one has to sue). This means that after three years from
the date of notice, the copyright owner loses any right to sue you.</p>
<p>Make sure you keep records of any correspondence related to
permission requests or notices, so they can be used later if needed to
settle any complaints.</p>
<h2 id="step-3-design-the-archive-to-align-with-fair-use.">Step 3:
Design the archive to align with fair use.</h2>
<h3 id="fair-use-factors">Fair Use Factors</h3>
<p>The fair use doctrine of copyright law states that certain uses of
original works are non-infringing, even without permission from the
copyright owner. It provides courts with four factors to analyze:</p>
<ol type="1">
<li><p>The purpose and character of the secondary use, including whether
such use is of a commercial nature or for nonprofit educational
purposes;</p></li>
<li><p>The nature of the copyrighted work, including (a) whether it is
expressive or creative, and (b) whether it has been published;</p></li>
<li><p>The amount and substantiality of the portion used in relation to
the work as a whole; and</p></li>
<li><p>The effect of the secondary use on the potential market for or
value of the copyrighted work.</p></li>
</ol>
<p>These factors are used in U.S. copyright law only. See Appendix E for
more information on each factor.</p>
<h3 id="fair-use-actions">Fair Use Actions</h3>
<p>To align with the four fair use factors, we recommend the following
actions. See Appendix F for more information on how each recommendation
ties back to the fair use legal doctrine.</p>
<p>1. Fair use is favored when the purpose of the use is for education,
research, scholarship, commentary or criticism. Include a statement of
purpose on your website, or on each archive if possible, explaining how
your purpose in creating the archive relates to education, historical
documentation, research, scholarship, commentary and/or criticism. Add
as much additional commentary or other materials to the original works
as possible (e.g., oral history interviews you have conducted).</p>
<p>2. When you include the entirety or large portions of works in your
archive, make sure the rationale for using the amount relates to the
archival purpose. For example, one can include a photo of an entire
painting if the purpose is to highlight the painter's or painting's role
as part of the artist space.</p>
<p>3. Only include unpublished works if they are essential to your
purpose in creating the archive under Factor 1 or can be contextualized
with other commentary or materials.</p>
<p>4. Avoid commercial activity, including selling anything related to
the works in the archive or commercial advertisements.</p>
<p>5. Be sensitive to the heightened risk of using works from
professional photographers or creators. Make sure this serves your
purpose. If they sell the work, make sure your fair use argument is
strong and consider the cost of licensing the work to use in the
archive.</p>
<h2 id="appendix-a-collecting-information">Appendix A: Collecting
Information</h2>
<p>Below is an example of a spreadsheet you can use to document
information on the works you are including in the archive.</p>
<table style="width:98%;">
<colgroup>
<col style="width: 23%" />
<col style="width: 14%" />
<col style="width: 17%" />
<col style="width: 25%" />
<col style="width: 17%" />
</colgroup>
<thead>
<tr class="header">
<th style="text-align: left;">Name of Work</th>
<th style="text-align: left;">Source of Work</th>
<th style="text-align: left;">Year of Publication & Notice</th>
<th style="text-align: left;">Creators/Copyright Owners</th>
<th style="text-align: left;">Notes</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td style="text-align: left;">Photo of Exhibit A</td>
<td style="text-align: left;">Flickr</td>
<td style="text-align: left;">2010</td>
<td style="text-align: left;">Gallery Contributor John Smith</td>
<td style="text-align: left;"></td>
</tr>
<tr class="even">
<td style="text-align: left;">Description of Exhibit A</td>
<td style="text-align: left;">Archive website</td>
<td style="text-align: left;">2015</td>
<td style="text-align: left;">Gallery Contributor John Smith</td>
<td style="text-align: left;"></td>
</tr>
<tr class="odd">
<td style="text-align: left;">Oral History Interview</td>
<td style="text-align: left;">Conducted by me</td>
<td style="text-align: left;">2023</td>
<td style="text-align: left;">Your name here</td>
<td style="text-align: left;"></td>
</tr>
<tr class="even">
<td style="text-align: left;">Artwork A in Photo A</td>
<td style="text-align: left;">Photo is from Flickr; work pictured is
from MOMA</td>
<td style="text-align: left;">1975; no</td>
<td style="text-align: left;">Artist Jane Smith; MOMA</td>
<td style="text-align: left;">MOMA might be a copyright owner under the
work made for hire doctrine</td>
</tr>
</tbody>
</table>
<p>Note also that you can search the copyright office records portal
here if you know the approximate year of registration and either the
title of the work or the name of the copyright owner to determine if a
work was registered with the Copyright Office. If a work isn't in the
Copyright Office database, that doesn't mean it is in the public domain;
it just means it wasn't registered.</p>
<h2 id="appendix-b-works-made-for-hire">Appendix B: Works Made for
Hire</h2>
<p>A work prepared by an employee within the scope of his or her
employment or a work specially ordered or commissioned for use as a
contribution to a collective work would both be considered works made
for hire. For example, if a photographer employed by a museum has been
hired to take photographs of exhibits, the photographs would be works
made for hire and the museum would be the copyright of those photographs
rather than the photographer.</p>
<p>If there is not a formal contract establishing that the works are
works made for hire, consider the following factors and whether they
would demonstrate the creator was treated more or less like an employee:
the skill required, extent of the employer’s control, source of tools
and materials, location of work, provision of employee benefits, whether
the employer has the rights to assign other work to the employee,
duration of the relationship, method of payment, hiring party’s role in
hiring and paying assistants, whether the work is part of the regular
business of hiring party, and tax treatment. For example, an artist
commissioned by a building to create a sculpture for their courtyard
would be more likely to be considered an employee if the building hired
assistants for the artist, provided the tools, and directed the artist
in how to prepare the sculpture.</p>
<h2 id="appendix-c-joint-collective-authorship">Appendix C: Joint &
Collective Authorship</h2>
<p>Joint Work: An individual work that you and the other author(s)
contributed to, each with the intent that your contributions be merged
into inseparable parts of a unitary whole work.</p>
<p>Collective Work: Individual copyrightable contributions brought
together to form a collective whole. The author(s) of a collective work
is the person(s) who selects and arranges the individual works that
comprise the collective work. The copyright in a compilation only
extends to the original contributions from the author, and not to the
preexisting material contributed to the compilation, so even if you are
considered an author of the collective work, this would not give you the
rights to any of the individual materials that you did not write.</p>
<p>Websites are a common example of a collective work. To the extent
that the copyright office recognizes registration of websites (and not
just the individual works within them), they recognize websites as
collective works. This means that if you designed or helped design a
website to which others contributed individually copyrightable work
(such as a photograph or sufficiently long description), you would be an
author of the website design, but the individual contributors would
still hold the copyright to their individual contributions. For an
example, see the following page.</p>
<p>In order for a website to be considered a collective work, there must
be a minimum amount of creative expression in the selection and
arrangement of the content.</p>
<p>It is possible that some of the individual works within a collective
work could be joint works. If you are a joint author of these individual
works, you would have equal claim to the copyright as any of the other
authors, and your use of them would not be infringement.</p>
<p>Image description: A screenshot of a webpage with a black background.
There is a gray logo in the upper right corner with the letters SC in a
circle and the words super cool beneath the circle. The website title,
“Super Cool Website” is in large font on the right side of the page.
Below the title is a photo of a manicured hand on an adult coloring
book. On the upper left side of the web page, there are two photos. One
photo is of a woman writing in a journal, and the other is of a side
table with various objects. Beneath the photos is a selection of lorem
ipsum text with the headline “Element 1.”</p>
<p>The logo, text, and each of these photos are considered different
works with independent copyrights. They might have the same author or
different authors. The copyright in each would belong to the creator of
that work. These works might be joint works if multiple people
contributed to them with the intention of creating a single work. For
example, if multiple people wrote some of the text in Element 1 with the
intention of creating one integrated writing, then they would be joint
authors of Element 1.</p>
<p>The copyright in the collective work (the website) would belong to
whoever collected and arranged the individual works into the webpage,
and that copyright would only protect the design created by the
collective author.</p>
<h2 id="appendix-d-sample-permission-email">Appendix D: Sample
Permission Email</h2>
<p>Below is a sample email requesting permission from artists to use
their works in your archive. Even if they do not respond or deny
permission, sending this can provide the requisite notice discussed
above.</p>
<p>Dear [Name],</p>
<p>I am working on an archive of [artist space] and would like to
include [name of work] on the website. This archive is meant to serve as
documentation to enhance education, research, scholarship, and
commentary related to [artist space], and including your work will help
with this purpose. I want to officially get your permission to use [type
of work] and permanently archive it on the website. Please let me know
if this is ok with you.</p>
<p>Thank you,</p>
<p>[Name]</p>
<h2 id="appendix-e-fair-use-factors">Appendix E: Fair Use Factors</h2>
<p>Factor 1: Transformation or addition of new material to an original
work favors fair use under this factor. The test here for courts under
the test articulated in the Campbell v. Acuff-Rose case is whether the
new work is transformative, i.e, whether it “merely supersedes” the
original work or “adds something new, with a further purpose or
different character, altering the first with new expression, meaning, or
message.” Criticism, commentary, news reporting, teaching, scholarship,
and research are types of works more commonly found to be fair use under
this factor.</p>
<p>Factor 2: Creative works and unpublished works are less likely to be
fair use, but this factor is rarely dispositive.</p>
<p>Factor 3: The question here is whether the amount of the work used,
both qualitatively and quantitatively, is reasonable in relation to the
purpose of the copying under the first factor.</p>
<p>Factor 4: This factor considers whether the new work may serve as a
market substitute for the original or if the original work could have
been licensed for use in the new work.</p>
<h2 id="appendix-f-fair-use-actions">Appendix F: Fair Use Actions</h2>
<h3 id="transformation-and-archival-purpose">1. Transformation and
Archival Purpose</h3>
<p>Since Factor 1 is most important in a fair use analysis, aligning
your archive as much as possible with an educational, scholarly,
commentary, and/or news reporting purpose can be very useful. A Factor 1
case can be bolstered by adding additional information or creative
elements to the archive that are your own, in addition to the existing
works you are including. This can include a statement of purpose on one
page of the archive that explains the educational and historical
documentation purpose of the archive.</p>
<h3 id="using-entire-works">2. Using Entire Works</h3>
<p>Since Factor 3 asks if using the entirety of individual works is
reasonable in light of the purpose under Factor 1, consider
reasonableness when including individual elements. In one case, multiple
concert posters were used in their entirety in a coffee table book about
the Grateful Dead, but it was deemed reasonable to use the entire works
to provide a useful historical reference point for a book about the
band’s history. This is an example of a situation where use of the whole
work is permissible. In another case, however, a documentary about Elvis
was found to have taken too much of Elvis interview clips because they
were used repeatedly and at length, and their use as a historical
reference point for the documentary could have been done by using a much
smaller portion. Based on cases like these, it is important to consider
how closely use of the works ties into your purpose in creating the
archive.</p>
<h3 id="unpublished-works">3. Unpublished Works</h3>
<p>Since Factor 2 of a fair use analysis provides heightened protection
for works that have not been previously published, be sensitive to the
use of unpublished works and only include them if necessary. Publication
generally means made publicly available, so consider whether the work
was posted to the public to find through a search engine or viewable in
a gallery open to the public. Factor 2 is rarely dispositive, but
unpublished works tend to weigh against fair use. This was found in two
commonly cited cases involving unpublished letters by J.D. Salinger and
an unpublished portion of a memoir about President Ford. In another
case, the court found that use of an author’s unpublished works in a
biography about him weighed against fair use, but overall the use was
still fair because of the scholarly research purpose under Factor 1.
Therefore, we recommend avoiding using unpublished works when possible.
When it is necessary to use them, recognize that contextualizing them
with an oral history or artist statement can help by connecting it to
your purpose under Factor 1.</p>
<h3 id="commercialization">4. Commercialization</h3>
<p>Commercialization can work against you in both Factor 1 and Factor 4
of a fair analysis. Under Factor 1, commerciality generally works
against a finding of fair use. Under Factor 4, commerciality can
demonstrate a higher likelihood of harm to the market of the original
work. This is generally limited to commercialization related to the use
of the works, but to be safe it is best to avoid all
commercialization.</p>
<h3 id="professional-artists">5. Professional Artists</h3>
<p>Professional artists are more likely to sue to protect their rights
in their works. They are also more likely to have registered their works
with the Copyright Office, allowing them to seek statutory damages which
could be more financially damaging to you. This also shows more harm to
their markets under Factor 4 of a fair use analysis because they have
potential markets for their works to be purchased directly or to license
use of their works for archiving purposes, and this archive arguably
harms those markets. If they have licensed their works for similar
purposes in the past, this can contribute to the argument.</p>
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