Deed of Gift and retaining my copyright interest as creator for a museum donation?

[invisibleflash]

I donated a few photos to a museum. They want a Deed of Gift executed. Within the Deed of Gift it mentions copyright. They have it in brackets and in bold as shown below.

Since I am the creator, should I strike out the word copyright and leave the proprietary right in force? It would seem they have a proprietary right to make photos of my gift, the photographs. But I should retain the copyright as the creator.

"The undersigned Donor, in consideration of Donor's desire to benefit the (Museum's Name) and of (Museum's Name) acceptance of donor's gift of Property (subject to the terms set out below), does hereby irrevocably and unconditionally give, grant, donate, assign, convey and deliver, together with all [copyright, proprietary right and] related interests of donor therein to (Museum's Name) to become its property, the below described items along with any frames, mats, bases or other material delivered to (Museum's Name) along with such items (the "Property"):"

Then the Deed of Gift lists a description of the "Property", the photographs.

On the back is listed the terms such as lawful owner, authorization to transfer, maintenance responsibilities, tax concerns, claims and judgements, title ownership. Nothing related to copyright.

I wrote the museum to ask about this, but it takes a long time to get a reply.

[ROL]

It looks to me like you are assigning copyright to the museum. Whether you can strike/change (and initial) portions of the agreement is between them and you. This assignment of copyright seems to be rampant these days, presumably because of the internet, and the giftee/user of the media requirements to promote artis's work. I'm not sure what the ultimate answer is, other than to do as you suggest, but this kind of parsing of leagal document may not be acceptable to the other party unless they really want your stuff. Contact the USCO for rights clarification (good luck with that). I'm interested to see what you work out.

[Jac@stafford.net]

Archives and museums are reluctant to accept anything that restricts their rights to the property, however you can strike copyright and see how they react and possibly negotiate with them. They might counter with a release date - the date upon which you give up copyright.

Regarding proprietary rights, they concern things other than copyright such as taxes, maintenance, etc, and should be detailed in the agreement.

But see an attorney!

I am not an attorney, nor practicing law.
J

[Merg Ross]

I can not speak to the intent of the museum in your case. However, I have photographs in the Center for Creative Photography in Tucson and it is clearly stated that " I, (name), as the creator of the works own the copyright to all works created by myself, and warrant that I am the sole author and owner of all rights in and to the photographs".

Included is a separate agreement for "Web Use" to publish the works on the CCP website larger than thumbnail size, which requires the consent of the copyright holder and to be accompanied by a copyright notice posted adjacent to the image.

CCP is an institution that deals primarily in the collection of photographs, so perhaps it is more familiar with the issue of copyright than other institutions. I would be reluctant to sign over those rights.

[Peter Gomena]

This always is a sticky area between photographers and museums.

Rather than a gift, maybe a "loan" is a better solution.

When I worked for the Oregon Historical Society library, there were always issues coming up where photographers had given materials to the library decades ago but had not reassigned copyright. The library then is tasked with finding the photographer or his/her heirs whenever someone wanted to use the pictures. Sometimes the photographer just insisted on a credit. Sometimes a photo was loaned for research purposes only and could not be reproduced.

If you want to retain copyright because you're still exhibiting and selling the images, you need to be very clear about that.

Peter Gomena

[invisibleflash]

I can not speak to the intent of the museum in your case. However, I have photographs in the Center for Creative Photography in Tucson and it is clearly stated that " I, (name), as the creator of the works own the copyright to all works created by myself, and warrant that I am the sole author and owner of all rights in and to the photographs".

Included is a separate agreement for "Web Use" to publish the works on the CCP website larger than thumbnail size, which requires the consent of the copyright holder and to be accompanied by a copyright notice posted adjacent to the image.

CCP is an institution that deals primarily in the collection of photographs, so perhaps it is more familiar with the issue of copyright than other institutions. I would be reluctant to sign over those rights.

Thanks for ALL the replies. Yes, a photo-centric institution should have it worked out. These museums are not such.

[invisibleflash]

This always is a sticky area between photographers and museums.

Rather than a gift, maybe a "loan" is a better solution.

When I worked for the Oregon Historical Society library, there were always issues coming up where photographers had given materials to the library decades ago but had not reassigned copyright. The library then is tasked with finding the photographer or his/her heirs whenever someone wanted to use the pictures. Sometimes the photographer just insisted on a credit. Sometimes a photo was loaned for research purposes only and could not be reproduced.

If you want to retain copyright because you're still exhibiting and selling the images, you need to be very clear about that.

Peter Gomena

Would the copyright run out on such older items?

I don't sell my work. But I do actively work to place my work at museums and rare book libraries.

Loaning is tough. (I think) unless they really want a photo. The amount of work I spend and money that is needed to just give it away is amazing.

I also make a hand printed, editioned book. So I am always using the photos myself and need the copyright. Wouldn't that be something if a museum stripped the creator of the copyright and the photog could not even produce his own work??

What I have told them in the past was this. I am giving you a jpeg file for your use. You can freely use any of the images for educational and editorial use, but I retain the copyright. No library ever wanted a Deed as of yet. And I have photos in some of the largest libraries in the US and UK. But museums must be different.

It would be hard for me to release the copyight after some time. I may have a certain number of the same photos in number of instituions. I don't even know how many have the same photo unless I do a lot of researching records. Who would I pick first to release it to type of thing?

[invisibleflash]

Looks like they are all different. Here are 2 Deed of Gifts

This one spells out any copyright adjustments should be on an andendum.

http://www2.southcarolinahistoricalsociety.org/wp-content/uploads/2011/09/Deed-of-Gift-Manuscripts-and-Photographs.pdf


Here is another one from the Gugg

http://www.eai.org/resourceguide/collection/computer/pdf/guggenheim_gift.pdf

[Bill_1856]

Ask Brian Ellis -- I believe that is his area of expertise.

[Otto Seaman]

You can write a letter of agreement in plain English specifying that the Muesum has the right to use the image for their promotion but you retain copyright.

[Don Dudenbostel]

I am turning over my Appalachian documentary images I've shot over fifty years to a museum. The collection of work is significant and contains work that can never be photographed again. The museum has established a special collection and archive within boundaries of use that I have dictated. The stipulation is this work be preserved for public use and viewing but can never be used for commercial applications. It is there for public education and not commercial use. I also retain copyright of all images. The collection consists of roughly 100,000 negatives that will kept in archival storage after scanning the most significant images.

If these are important images and they want them then you can dictate the terms.

[invisibleflash]

That is impressive Don. While my photos may have some small historical interest. The museums may only accept a few of them at a time. So it is not like your case of a huge donation.

How did you find this museum to work with? Was it your first choice?

Have you put up any of your work on a website for viewing?

[Don Dudenbostel]

I really didn't want my work to wind up lost on in the trash one day. I realized the images had historic value and were depicting the culture of Appalachia. I went to some friends mainly looking for advice on where to exhibit. My friends were with the university of Tennessee and the called the curator of the anthropology museum in the area. The curators suggestion was to contact a person at the asset Tennee Historical Society. They have a fairly major museum dedicated to east Tn history and culture. The history center / society is connected with an organization that houses such works. They have thecThompson collection which documents the region from before 1900 until the late 60's. It's all one persons work and consists of thousands of circuit camera negs, banquet camera negs and large format negs. It contains images of FDR dedicating the Smokies National pard of which Jim Thompson the photographer was instrumental in it becoming a national park. Other images are important industrial and cultural images. The museum and Thompson collection decided to establish the Dudenbostel collection and have gotten grants and had fundraiisers to set it up. Vanderbilt University is showing interest I acquiring part of it as well.

The collection contains images of several moonshiners, their stills and thousands of gallons of hooch. Serpent handling in church, cock fights, kkk cross burnings and other obscure and once traditional practices that are now gone. It spans fifty plus years. There's a touring exhibition of 94 of my images going to serious museums on loan.

Look at www.x-rayarts.com and go to the documentary section. This is just a tiny selection.

[Leigh]

I write my own Deed of Gift, using the museum's text as a model.

Transfer that text to your own letterhead, excising any references to copyright.

Then add a paragraph at the end substantially of the following form:
"Donor retains all copyright to the Material in perpetuity.
Donee is hereby granted an irrevocable license to use the Material as follows:
1) To store, display, and conserve the Material;
2) To use images for self-promotion and advertising;
3) etc..."
Spell out whether they can make/sell copies thereof, include copies in composite works, and whatever else.
Definitely include stipulations regarding sale of copies, whether permitted or prohibited, and under what conditions.

- Leigh

[invisibleflash]

Thanks Leigh and Don.

Some fantastic historical photos you have Don. Did you run into any trouble with some of the subjetcs? KKK and moonshiners would seem to be camera shy?

[Don Dudenbostel]

No real problems. The moonshiner was very unpredictable and potentially violent. He killed two men in cold blood and got away with it. You just never knew what to expect from minute to minute. The klan was a bit that way too butdidn't rsally fear them.

[Brian Ellis]

Ask Brian Ellis -- I believe that is his area of expertise.

Hi Bill - Actually I was a tax lawyer, I know nothing about copyright law. But someone here specializes in that area, Ed Richards maybe?