RAQs: Recently Asked Questions

Topic: Undocumented and unclaimed items in collections - 09/29/2021
We have a couple of questions relating to Section 233-A of NYS Education Law, the "Museum Pro...
Posted: Wednesday, September 29, 2021 Permalink

MEMBER QUESTION

We have a couple of questions relating to Section 233-A of NYS Education Law, the "Museum Property Law". The law as written seems to only address totally undocumented objects and recent loans, but it also seems to have clear implications for the many partially documented objects and very old loans we have to deal with. As we all have slightly different ideas of how to stretch the law to fit our situation, I thought it would be best to get a legal opinion rather than trusting our common sense.

1) Regarding “undocumented property”: How much documentation is required for a donation to have sufficient written proof of legal transfer of ownership?

In the collections, we have a significant number of donated items which do not appear to have deeds of gift clearly transferring title from the original owner to the museum. They do appear in our ledgers along with the names of their donors, and sometimes have information confirming the link between donor and object on a vintage card cataloguing system – however, these forms of documentation are not a contract like the deed of gift, or even a piece of correspondence that shows an intent to donate.

In your reading of the Museum Property Law, should we consider such property to be undocumented, and to require similar measures to gain title? (That is, advertisement in local papers, followed by a period of advertisement on the state comptroller’s website.) Should we follow a similar procedure as with unclaimed property, despite these items not having been intended as loans? Or can we consider them to be documented, since we know the donors, and treat them like any other object when it comes to deaccessioning.

2) Regarding “unclaimed property”: How much of an effort is considered “good faith” in seeking lenders of very old loans?

The vast majority of the items we would consider unclaimed property were lent in the 1940s-1960s. From the research we’ve done into the lenders, they appear to be deceased, and in many cases their children are also deceased.

The law is written in such a way that it seems to presume all unclaimed property is the result of a recent loan that is still technically the property of a living person, which causes us some difficulties. It presumes that sending the lender a certified letter to their last known address will notify the person who currently owns the object. However, in our situation, as the original lenders are deceased someone else would have inherited their property – and in some cases, that heir would have left it to someone else in their own will.

If we know that a lender is deceased, are we still required to send them certified letters? Are we required to seek out their next of kin, and if so, are we required to continue seeking next of kin until we find a living relative? Is seeking permission from next of kin actually counterproductive, in that it could open us up to a lawsuit from a non-next-of-kin heir?

Thank you for any assistance you can give.

WNYLRC ATTORNEY'S RESPONSE

[NOTE:  For some initial background on New York's law governing museums and loaned/donated items, see https://www.wnylrc.org/ask-the-lawyer/filter/159]

On its face, NY Education Law 233-aa seems straightforward, but as the member's questions point out, it requires the consideration of a lot of details.

To answer the question while addressing those details, I'm going to use a story to give my answers some focus.

The Story

When I was in third grade,[1] a schoolmate brought her grandfather's shillelagh,[2] a family heirloom from Ireland, into school for "Show & Tell."

Before and after our "Show and Tell," the shillelagh was kept in my classmate's locker.

You probably know where this story is going.  At some point after "Show and Tell," the shillelagh went missing. 

I can still remember my teacher making the announcement, casting a discerning eye at my fellow third-graders, trying to pick out the criminal.[3]

To the best of my knowledge, that family heirloom has never been found.[4]  But because I am the sort of person who is very into both heirlooms and true crime mysteries, every few years, I find myself wondering where it is.[5]

But let's pretend that sometime in 1981, whoever took it that day held onto it for a bit, and then-- realizing they had no need for a hot shillelagh--hastily left it on a museum's doorstep with a note reading: "I thought you could use this, so here you go.  Sincerely, I.M. Purloiner." 

And to make my scenario work, let's further pretend the museum, finding an antique shillelagh to be within the scope of its mission,[6] accessions the item into its collection, and never hears from "I.M.  Purloiner" again.

And with that scenario to work with, let's answer these questions.

How much documentation is required for a donation to have sufficient written proof of legal transfer of ownership?

If a museum has any contemporaneous records showing that an item, when dropped off, was a "donation," unless there are circumstances to the contrary, I am comfortable saying the museum can regard the item as its own property.

In the member's scenario, that record would be a routine practice of recording items as either loans or donations.  In my scenario, there isn't quite enough (nothing shows an intent to transfer the ownership).

Of course, nowadays, there are very precise requirements for ensuring donors are aware of the terms of a gift to a museum.  For example, Education Law 233-aa (3) requires:

Prior to the acquisition of property by gift, a museum shall inform a donor or prospective donor of the provisions of this section and shall provide a donor or prospective donor with a written copy of its mission statement and collections policy, which shall include policies and procedures of the museum related to deaccessioning.

But what about, as the member writes, documentation of items from before the law was in effect?[7]  Again: if a museum can show a customary practice of accepting donations by recording them in a particular way, I believe it can make a compelling case that the title (ownership) of the piece was transferred to the museum at the time of the intake.

I base this conclusion, in part, on the law's definition of a "loan" and a "lender":

The term “loan” means a deposit of property with a museum not accompanied by a transfer to such museum of title to the property.

The term “lender” means a person legally entitled to, or claiming to be legally entitled to, property held by the museum or, if such person is deceased, the legal heirs of such person.

That said, if there is no record of how an item was accepted (as either a donation or loan), the only presumption I can endorse is that the item was a loan.

Which brings us to the member’s next question: In the collections, we have a significant number of donated items which do not appear to have deeds of gift clearly transferring title from the original owner to the museum. ...  In your reading of the Museum Property Law, should we consider such property to be undocumented, and to require similar measures to gain title?

Building on the idea that if there is clear evidence that the property was accepted as a gift--even if not through a "deed of gift" or other typical instrument--I would regard it not as "undocumented" (which means there is no reliable information as to the lender or donor), but as a donation.  On the flip side, if accepted as a loan, I would again not regard it as "undocumented," but rather, as "unclaimed" property, as contemplated by Section 7 of the Education Law 233-aa:

Unless there is a written loan agreement to the contrary, and notwithstanding any other provision of law regarding abandoned or lost property, a museum that has made a good faith and reasonable search for the identity and last known address of the lender from the museum records and other records reasonably available to museum staff may terminate a loan for unclaimed property in its possession in accordance with the provisions of this subdivision. [emphasis added]

Which brings us to the member's next question:  Regarding “unclaimed property”: How much of an effort is considered “good faith” in seeking lenders of very old loans?

There is no magic formula for "good faith" (in this context), but in general, if a museum feels it can show it has used all available resources, without undo time and expense, it should be able to demonstrate it.

The trick to "good faith" is being able to show a meaningful, genuine effort.  Does it mean a museum has to hire a private investigator to establish the identity of a person who left a shillelagh on its porch in 1981? No. But if a known lender with a known address is recently deceased, and a list of heirs can be obtained from the Surrogate’s Court in their county (for free or a nominal copying fee), should that be done? Yes.

This brings us to these final questions:

If we know that a lender is deceased, are we still required to send them certified letters?

If it is known that the lender is deceased, the letter should be addressed to their heir, if possible. 

Are we required to seek out their next of kin, and if so, are we required to continue seeking next of kin until we find a living relative?

It is not the next-of-kin, but the "heir" who should be sought (the terms are not synonymous[8]). 

How does a museum identify a deceased lender’s heir?  That information can "reasonably" be sought in the Surrogate's Court in the county of the lenders' last known residence.  And if the information isn't there, I feel comfortable saying that a documented attempt to locate it there is all that is needed to show "good faith."

Is seeking permission from next of kin actually counterproductive, in that it could open us up to a lawsuit from a non-next-of-kin heir?

As I say, because of how 233-aa defines "lender," it is not the next-of-kin who should be sought, but the "heir."   Of course, doing the right thing is never a guarantee that a museum won't be sued...but if there is a legal action, or threat of one, efforts to find the "heir" will establish a "good faith" attempt to follow the law, which will position a museum to legally defend its actions.

All of which brings me back to my classmate's missing shillelagh.  If the museum in my scenario decided it wasn't comfortable with the manner in which it was acquired, and wanted to firm up its claim to the item (or return it to its owner), that is when a museum can follow the process for "undocumented property" and publish a notice meeting the requirements of 233-aa.

I hope this walk through the details (with a shillelagh), has been helpful.



[1] Circa 1981.

[2] What's a shillelagh (pronounced "shill-lay-lee")?  It's an Irish walking stick; for more info, see https://en.wikipedia.org/wiki/Shillelagh_(club).

[3] It was not me.

[4] I resisted the urge to jump on Facebook and find my former classmate to ask.  What a random, creepy question to ask after 30 years of silence.

[5] If by any chance you are reading this in the Central New York area and happen to know, please send me a note at adams@losapllc.com.

[6] The Museum of Wooden Tools?  The Museum of Walking Sticks?  The Museum of Irish Implements?

[7] 2008.

[8] This is why it is important to try and get the information from the Surrogate's Court.  A person may die and deliberately disinherit their next-of-kin, while designating other heirs.

 

Tags: Archives, Donations, Historical societies and museums, Special collections

Topic: Enforcing Code of Conduct - 06/04/2021
The New York Archives Conference recently posted a formal Code of Conduct (https://www.nyarchivist...
Posted: Friday, June 4, 2021 Permalink

MEMBER QUESTION

The New York Archives Conference recently posted a formal Code of Conduct (https://www.nyarchivists.org/nyac/code). While discussing our procedures for implementing this code, we began to wonder about the legal implications for enforcement. Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation? To summarize, we're wondering what legal ground we can stand on while enforcing our code of conduct.

It would be great to have a response before our conference on June 11. Thank you

WNYLRC ATTORNEY'S RESPONSE

Before I dive into this meaty and spectacular[1] question, here is a necessary disclaimer: this answer does not apply to chartered libraries.

Who does it apply to?  The following:

  • New York State Education Department chartered or incorporated museums, archives, historical societies, and other non-public entities;
  • Not-for-profit charitable corporations (like a "Friends of the Library");
  • Clubs, fraternal organizations, benevolent societies (like a knitting club, a bike club, or athletic league).

Specifically excluded from this answer are municipal, school district, and special district libraries, because their rules of conduct must accord with state and federal requirements of due process.  Indian[2] and association libraries must also be cautious about this issue, since the law and practices that form those libraries may have express and at times unique provisions about access.[3]

So, to be clear: NO PUBLIC LIBRARIES should rely on this answer (unless you are using it to help a private museum answer questions about enforcing its code of conduct). [4]

Okay, with that established, here is the answer:

At the heart of this question is the charter (or certificate of incorporation) and bylaws of an organization. Close to the beating heart are its policies.

In New York, most not-for-profit organizations are made "official" through a filing with the NY Department of State.  However, many cultural not-for-profit organizations (including the New York Archives Conference) are made "official" via "chartering" or "incorporating" through the State Department of Ed. 

Both types of entities--"chartered" organizations, and "not-for-profit corporations"--are "real" entities, created by law. 

It is this act of creation--through charter, or incorporation--that sets the stage for how an organization gathers its participants and conducts its business...which is exactly the member's question.

So, before anything else, to determine "what legal ground we can stand on while enforcing our code of conduct" one must look at those documents, which are the key to the identity of the entity.

In this case, the Conference's certificate of incorporation[5] says nothing about membership criteria, but the Conference's Constitutions and bylaws[6] say:

3.1 Membership. Membership shall be open to all persons interested in the purposes of the Corporation. The Members and Board may establish such other criteria for membership, including a schedule of dues, as they deem appropriate.

Meanwhile the Conference's membership terms on its website[7] state:

The constitution and by-laws reflect as much as possible the traditional informality of NYAC. Traditionally, membership in NYAC has been based on attendance at an annual meeting. A single attendance put a person’s name on NYAC’s mailing list for a long time, resulting in a cumbersome list with many out-of-date addresses.

The membership year will coincide with the fiscal year of NYAC, from July through June. The annual meeting registration fee will include the membership dues (currently $15.00). For people unable to attend the annual meeting, membership dues should be sent to the NYAC treasurer to ensure receipt of the following year’s program. If, by some strange chance, a member pays the annual dues prior to conference registration in a given year, his or her registration will be reduced accordingly.

The authority of the Conference's board to adopt the criterial for membership, including adherence to a "Code of Conduct" that can apply to members (and guests), is found back in the bylaws, which state:

4.2 General Powers. In addition to specific powers delineated in the By-Laws, the Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation, the By-Laws, or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.

The "Code of Conduct" the member's question links to is one of the "rules and regulations" mentioned in Bylaws section 4.2.   

Looking at the Code, you can see that it encourages certain (welcome) behavior, and bars certain (unwelcome) behavior, with the following being used to enforce the requirements:

All participants are expected to observe these guidelines during the conference or any NYAC proceedings, including virtual settings. If you may witness or experience any inappropriate or harassing behavior please report this concern using the form below.

Dial 911 for immediate medical emergencies or to report a crime. All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse. 

The policy then sets out multiple options for reporting, including an online form, which states:

We can't follow up on an anonymous report with you directly, but we will fully investigate it and take whatever action is necessary to prevent a recurrence.

...all of which brings us to the member's question: how can this be enforced?

First, it is important to consider just what is being prohibited. Here is the list from the Code (as stated at the bottom of the Code, this policy is inspired by Codes adopted by other archival organizations):

Unacceptable Behavior: 

NYAC does not tolerate harassment of any shape. If any participant engages in any demeaning, abusive, coercive, discriminatory, or harassing behavior, appropriate consequences will be taken against such individuals. This could result in something as minimal as a warning or more serious as being handled by the authorities. Harassers may lose privileges to the conference(s). 

  • Threats or acts of violence.
  • Intimidation or stalking.
  • Disruption of any speakers/panelists or any conference proceedings
  • Derogatory or unwelcome comments regarding a person’s race, gender, sexual orientation, religion, disability, lifestyle choices and practices.
  • Inappropriate physical contact or unwelcome sexual attention.

Second, it is important to establish: as a not-for-profit corporation operating in New York, the New York Archives Conference already has to follow the below-listed laws:

  • Conflict of Interest requirements of the Not-for-Profit Corporation law;
  • (If it ever had the right amount of money or employees, or wants to meet some donor criteria) the Whistleblowing requirements of the Not-for-Profit Corporation law;
  • The New York Human Rights Law (barring illegal discrimination on an array of characteristics[8]) and other civil rights laws.

So even without such a policy, there is not only authority, but could be an obligation, to receive reports of certain behavior, and deal with them as required by law. 

A good example of this, from the Code, would be derogatory comments based on sexual orientation (which could be a violation of New York's bar of sexual harassment).

Third, it is important to consider that some of the conduct listed in the Code is criminal.  Examples of that include:

  • Stalking
  • Threats of violence
  • Unwelcome physical contact (this is of course highly fact-specific)

For instances involving the alleged commission of a crime, a report and investigation could quickly become complicated by questions such as: will the reporter want to contact law enforcement?  Does the venue have an obligation with regard to the incident?[9]   Does the Conference have evidence that could later become relevant in a criminal proceeding? 

And finally, it is important to see that this Code requires conduct that "rises above" the bare minimum set by various laws.

For instance, the Code bars interruptions, rudeness, and demeaning conduct.  While sometimes such conduct can be a part of illegal "harassment" or even "coercion," barring even one minor instance of such conduct is more about setting the professional atmosphere for the Conference, rather than simply obeying the law.

"Setting the professional atmosphere" for an organization might also be called "setting the norm."  By adopting this Code, the Conference is setting a norm of courtesy and respect, ensuring members are not interrupted or jeered when participating in Conference activities. 

So how does the board enforce this "professional atmosphere"?

I could go on and on about the law,[10] but I have 5 tips:

Tip #1: Model the behavior you require.

The best way to enforce a Code of Conduct is to ensure the leadership within the group visibly complies with it (this will also ensure compliance by directors and officers, which will help avoid legal complications).

Tip #2: Repeat the rules often.

It may leave leadership feeling like a broken record,[11] but when it comes to new norms of behavior, repetition is your friend.  It is great that the Code has its own sub-page on the Conference web site; for an event or meeting invitation, a link should be on all materials.  Conference event leaders and speakers should get at least a 15-minute orientation on how to comply with and benefit from the Code during events, meetings, and online discussion (I am a fan of training through role-play).  The board should revisit the Code at least once a year to discuss specific incidents and assess if the institution's response requires refinement. 

By repeatedly describing and addressing the norms, they will be built into the foundations of the organization.

Tip #3:  Follow through on enforcement.

The Conference's Code says "All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse."  What does that mean? That each report must result in a final summary as to how the incident was handled.

Unfortunately, there is no one way to ensure this level of follow-through.  Some instances may be resolved simply by a discrete chat with a person to let them know that their romantic overtures are inappropriate.  Other incidents may warrant an announcement to all attendees at an event ("We received reports of numerous interruptions.  We want to emphasize that this is a violation of our Code of Conduct."), as well as more private action directed to specific individuals (a letter or warning).  Still other incidents (hopefully very rare) could result in ejection from an event and/or a report to law enforcement.

The trick is that for every report received, there be a good summary of the reported conduct, and a thorough "final summary" as to how the incident was investigated and resolved.  Again, there is no one-size-fits-all for this: some instances might be resolved with a paragraph ("The attendee was told that for the remainder of the Conference, no interruptions would be tolerated, and she agreed"), others could result in multiple pages and coordination with other organizations (for instance, if two co-workers get into a screaming match and call each other discriminatory names, be ready for lots of paperwork).

Tip #4: Have an established team, and a back-up team, to handle reports.

A reported incident under a Code of Conduct is not a trip for a part-time volunteer to fly solo.

Even if a report seems straightforward ("I sat down after presenting and PERSON gave me a long hug that made me very uncomfortable"), handling reports under this Code is not a one-person job.  There are too many variables[12] that can trip up even the most diplomatic and well-intentioned individual. 

If you are a designated report recipient, you need calm, steady back-up.  This is why having a pool of at least six people who know the Code, and are ready to respond to a report, is critical, and using no less than two people to respond to each report is also important.

Tip #5: Know when to bring in a pro.

The member has asked:

Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation?

These are excellent questions fueled by perceptive concerns; even the most professionally handled investigation with maximum due process can lead to distrust, the forming of factions, destabilization, and even (as the last question alludes) claims of liability.

How does an organization avoid that?

For a policy such as this Code of Conduct, at an all-volunteer organization, it is good to have a sense of what things can be handled in-house, and when it is time to call in an expert.

Here are some broad guidelines for when to bring in a ringer:

  • If there is an allegation of criminal conduct, especially if there is an allegation of physical abuse or stalking;
  • If there is an allegation that-if true-would lead to suspension or permanent ejection from the organization;
  • If there is property damage.

Now, when I say "bring in a ringer," I don't mean a person to take over the whole investigation (although they may).  And I don't necessarily mean a lawyer.  I simply mean a person with the professional skills and past experience to help the organization consider issues beyond the Code, but critical to the organization: risk of personal harm, liability, legal compliance, insurance, and (a distant fifth, but still important) public relations.

For issues that are going to result in a "soft" correction ("Hi, we know people hug here on occasion, but please know that unless a person has told you it is okay to hug them, it's a Conference rule that you refrain"), there is no need to consult a pro. 

But for "hard" corrections ("After repeated warnings regarding physical contact, you continue to impose unwelcome physical contact, and we must ask you to leave the Conference immediately") it is good to quickly check in with a pro.

For example, if I was consulted on the above "inappropriate hugging leading to a ban" scenario, I would ask:

  • Is/are the complainant/s injured?
  • Is/are the complainant/s the recipients of the hugs, or a third party?
  • When was the hugger last spoken to about this?
  • Who has witnessed the behavior?
  • Is the person a paid speaker or ticketed attendee?
  • What dynamics are at play?
  • What is the venue?

I would then work with the client to craft a swift but thorough response that ensured clear documentation of the occurrences, ruled in or out any allegation of injury or illegality (a very prolonged hug can be a criminal act, or just a very welcome gesture, depending on the details), used a risk analysis to adopt an immediate response, and developed a clear path forward to effect a resolution.

The good thing is, with the power of leadership modeling, repetition, and training, most complaints will be in the "soft consequences" zone ("I was speaking and PERSON interrupted me to tell me our approach was 'junk' and say how much better their database would handle the content; I just want to know that you have let them know that is unacceptable.").[13]

If a serious complaint does come along, there is no "catch-all" due process I can recommend for responding.  However, I can say that for each report, each response should follow this pattern:

  • A written statement of the complaint (held in confidence by the Conference; there is no need to share this document with any party, and it should be considered confidential) NOTE: This is the phase where you consult an expert if things are serious;
  • An initial assessment as to if the complaint is bona fide (if it isn't, you document that, and things end there, except perhaps to explore if you need to address a confabulated allegation);
  • A process for collection of relevant evidence and designation of an appropriate deadline for wrapping up the process;
  • A consistently applied means of evaluating the evidence;[14]
  • If there is to be action based on a finding of fact, a chance for the accused party to set forth their perspective on the accusation (a private organization has no obligation to share evidence in this type of proceeding, and shouldn't, without very careful planning);
  • A final summary as to how the report was resolved (a "soft" resolution simply advising an accused party of the rules, but no penalty, or a "hard" resolution with conditions imposed), and how the resolution can reinforce the norms of the Conference (does there need to be both a "private" and "public" resolution?)

In my experience, where all-volunteer organizations get in trouble is when a serious complaint (such as a complaint with injuries, or extreme rancor, or challenging harmful norms in the organization) is sat on (meaning: no action is taken, because they just don't know what to do).  This, along with early identification of risks and planning to avoid liability, is why I advise bringing in a pro for "serious" matters.

Other than the "serious" matters, having a group of board members or a volunteer committee trained and ready to nimbly and promptly address concerns under the Code will be a tremendous service to your organization.  I applaud the Conference for adopting a Code, and for thinking about the details of enforcing it.

I wish you many challenging-but-polite, innovative-but-patient, and rigorous-but-respectful events. 

Thanks for a great question.

 



[1] I say "spectacular" because for me, questions like this are why I was first interested in studying law.  My whole career is based on a 30-year fascination with how the law impacts what we can do and say.  When a question stands at the apex of your life's work, that is "spectacular."

[2] I know "Indian" can be a controversial term, but that is the term in the law.  In New York, the chartered Indian Libraries are The Akwesasne Library and Cultural Center the Seneca Nation Library, and the Tonawanda Indian Community Library.

[3] New York Education Law Section 253, which enables the creation of chartered libraries in New York, requires that all such libraries be "free" to their areas of service, and of course there are regulatory requirements about access, and system rules about services throughout a system, so caution is warranted when it comes to items that could curtail access to a chartered library.

[4] Shoo.  Go away.  This answer is dangerous to you!!  (Ok, you can stay...but don't use this answer).

[5] Nerd note: The Conference is not a chartered entity, but rather a corporation formed through an application to the Regents.  This means there is no charter, but rather, articles of incorporation that bring it into "life."

[8] Since the Conference has no employees, their obligations will not flow from employer status, but there are still contexts where the civil rights laws will apply.

[9] For instance, if stalking takes place on a college campus--even if the Conference just rented the venue--the incident requires a very precise response by the college or university.

[10] And often do.

[11] Is "broken record" still a thing?  Perhaps we should start saying "repetition code."

[12] Gender, cultural, class, language, power balance, race, religion, and perceived bias issues, to name just a few.

[13] Just a small note: when a policy like this is first enacted, it may feel like you are getting a lot of complaints.  Actually, this will be the very normal process of a group adjusting to newly established norms.

[14] The standard choices are "preponderance of the evidence" and of course "beyond a reasonable doubt."  Either is fine, it just should be uniformly applied.

Tags: Archives, By-laws, Historical societies and museums, Non-profits, Policy, Code of Conduct, Conferences and Events

Topic: Copyright protocols for restaurant menus - 05/06/2021
(Question has been slightly modified to maintain anonymity) We have been digitizing restaurant, ...
Posted: Thursday, May 6, 2021 Permalink

MEMBER QUESTION

(Question has been slightly modified to maintain anonymity)

We have been digitizing restaurant, hotel and other menus from our historical menu collection and have been following standard copyright protocols – but also making many case-by-case decisions based on things like whether of the establishment still exists, etc. (With only a couple exceptions I made for a faculty member who had permission of the restaurant owners, I haven’t scanned any menus from after 2000.) Our public collection site is used by students and researchers around the world.

My question is: can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes? If we do scan them, would we need permissions from every single chef/owner? The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.

WNYLRC ATTORNEY'S RESPONSE

Menus can be works of art.[1]

"Art" of course, is a subjective term, and has no precise, stand-along definition in copyright law.[2]  So more importantly for this discussion, a "menu" can be a composition of such originality and substance, that it is protected by copyright law.

This protection can be for the work as a whole (the entire menu), and/or it can be for individual elements in the work.  It can cover stand-alone elements (such as a cover photo image or flavor text[3] used to describe a signature dish), and, in these days of Slice and Grubhub and Yelp, it can be for the menu as a physical object, or a version published only online.  It can cover the original art in a trademarked logo, whether that art was generated by an independent contractor or employee.

Recent case law illustrates how these protections can be sliced-and-diced, and also shows just how nasty litigation over restaurant copyrights and trademarks can be.[4]  Menus and the logos and information they carry can be the apex of a restaurant's brand, reputation, and intellectual property.  So the member is right to take this concern seriously.

With care, however, the act of creating an online archive of carefully curated restaurant menus, for well-articulated academic purposes, should be able to find protection in the line of "fair use" case law building on the 2nd Circuit's 2015 decision in Authors Guild v. Google,[5] which relates to the creation of online repositories.[6]

As the Court found in that case: The purpose of the copying [to create the online resource] is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

The key to scanning and incorporating menus still under copyright protection into an archival database of menus at a library or educational institution, while taking advantage of the fair use defense set forth in Authors Guild, is to do so in a manner that:

  • Yields an asset that is useful beyond the mere replication of a single menu;
  • Ensures the archive will not enable use of its images in place of a copyright-protected original text or image; and
  • Uses an array of professionally developed standards to confirm and assert the academic and/or cultural value of the archive as a whole, and the inclusion of a particular work in that archive.

There are numerous techniques to achieve this.

First and foremost, the purpose of the archive should be developed and set forth on the archive in clear, well-developed terms. The database should not look like a group of menus simply gathered together by a person who happens to have made a collection of his favorite restaurants.[7] The cultural value and purpose of the collection should be stated in very certain terms, and consistently repeated throughout the archive's pages, cataloging text, and metadata.

Second, the function of the archive should be such that users can demonstrably benefit from the aggregated content and information. For instance, menus should be searchable by geographic region, type of food, notable characteristics, and other relevant factors...giving the aggregated content value beyond what is created by each individual entry.[8]

Third, the archive should adopt a standard approach to assessing and depicting the authorship, ownership, and copyright status of archived works.[9]

Fourth, the images themselves should be created so that a third party using the image cannot create a credible replica of the menu or the original originating restaurant's logo or copyright-protected content. A picture taken with a border, or the use of a watermark indicating that the image is part of the archive are some common ways to do this; technology creates many other and evolving options.

Fifth, since it will help mitigate damage in the event a copyright owner simply refuses to believe an archive has made a "fair use" of their content, the overall approach of the collection should be assessed using your institution's fair use assessment form, and that record should be kept. Why is that?  Being able to demonstrate a good-faith effort to establish that the use is fair can help mitigate damages, and can be a deterrent to a plaintiff pursuing a lawsuit all the way to a verdict.

Sixth, the "Terms and Conditions" of your online archive should feature a process for owners to report good-faith suspicion of copyright infringement, and your institution should have a registered agent as provided by the DMCA.  An example of this type of statement can be found in the DPLA's Terms and Conditions as of April 15, 2021: https://dp.la/about/terms-conditions. [10]

Seventh, if you haven't, consider the benefits of registering an agent under the DMCA, and if it's a good move for your institution, register (you can look up and see if your institution already has an agent here: https://www.copyright.gov/dmca-directory/).

And finally, to the extent possible, for steps five, six, and seven, work with your institution's attorney, who can connect all these steps and the academic activity they support with your institution's insurance and risk tolerance.[11]

So, with all that as background, here are my answers to the questions:

Can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes?

Answer: Yes, copyright-protected materials can be duplicated if the use is fair; by following the cautions above, an institution can set itself up to both create a highly useful and important archive, to claim fair use, and to mitigate damages in the event of a worst-case scenario.

If we do scan them, would we need permissions from every single chef/owner?

Answer: if the use is fair, there is no need for permission...and in fact, asking for it could be introduced by a plaintiff as an admission that you concluded you needed permission.

Now, a word of caution on this: if your archive is part of a larger institution, the other departments of that larger institution need to be alerted that just because an image is on your archive, that doesn't mean they can use it for a catalog cover, a web site image, or a poster advertising your institution.  After all, a use that is "fair" for an academic archive might not be so "fair" if it is on a brochure for a program or event (even if the program or event is not subject to a charge).  This is especially true since menus will often feature not only copyright-protected material, but trademarks (which, unlike copyrights, do not expire if they are in continuous use).

The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.

Because the menus themselves can be protected by copyright--as well as the individual elements in the menus--that "murkiness" is here to stay. Unless a menu is clearly in the public domain, it is best to assume that it--or some part of it--is subject to copyright, and remember that a restaurant's name and logo are its intellectual property, too.  The reason an archival initiative can make this assumption, and still hope to achieve its objective, is because by carefully and deliberately assembling those individually protected elements, they are creating a broader work with value beyond each individual element.

The value of a collection of menus is likely obvious to librarians, academics, and information managers.  But just as an example of how valuable such a resource can be, even outside the field of scholarship, I'll share a personal anecdote: while working on a case for a neighborhood fighting a fast food drive-thru in their dense, urban neighborhood, I used the New York Public Library's digital collection to find a menu for the "Little Harlem Hotel" in Buffalo NY.  The menu was part of the research we used to make the case that the neighborhood has a history worth fighting for. 

We lost the case,[12] but that menu helped create a vivid argument about the history of the neighborhood and its vibrant legacy, and that argument was energized by the archive.  An online archive of menus can be important in countless ways; finding the right legal recipe to make it happen is worth it.

Thank you for a great question.

 



[1] If you are skeptical about "menus as art," check out the menu here, and tell me if the rooster doesn't convince you that he could be in a museum.

[2] "Visual art" does, and of course "art" as a general term is used regularly in copyright jurisprudence. But "art" remains a subjective term.

[3] Yep, that's a "flavor text" pun.  Yum.

[4] The 2019 case Khan v Addy's BBQ LLC, (419 F Supp 3d 538), involving former business partners operating BBQ joints in Tea Neck, NJ, and Elmont, NY, shows just how convoluted these things can get.  Another case from 2018, 784 8th St. Corp. v Ruggiero, 2018 US Dist LEXIS 5405 shows how copyright ownership to logos and menus can change based on who did the work; also, it shows that if you are in business with family, it is important to have a good lawyer!

[5] Authors Guild v Google, Inc., 804 F3d 202.  The Supreme Court denied a chance to review this case, leaving the 2nd Circuit's decision intact. 

[6] The database created by Google in the Authors Guild case was not a straightforward online archive like the one described by the member here.  However, the case is still applicable in several important ways.

[7] I know a professional archivist would not do this, but this is a very important distinction.

[8] Other "relevant factors" of which I, a food philistine living in the city that invented Buffalo Wings, and originally from the city that invented Chicken Riggies and Half-Moon cookies, am shamefully unaware.

[9] The approach of the Digital Public Library of America ("DPLA") happens to be my favorite, seen here in this document about the Erie Canal, but is not the only standard out there. What's important is that the institution identified a system that works for it--and then consistently uses that system.

[10] It would be deeply ironic if the DPLA sent me a "cease and desist" for linking to their excellent resources.

[11] Since every archive or library has a different structure and different approach, while inspiration can be drawn from fellow institutions, the final approach and policies should be reviewed by a lawyer for your institution whenever possible.  As just a threshold issue, state-affiliated institutions have different risk considerations than independent not-for-profits.

[12] It hurt to lose, but the damage to the neighborhood hurt more.

Tags: Archives, Copyright, Digitization and Copyright, Fair Use, Special collections

Topic: Archival materials, Privacy, and FERPA - 02/26/2021
My institution has a small number of documents in our archives related to previous graduate studen...
Posted: Friday, February 26, 2021 Permalink

MEMBER QUESTION

My institution has a small number of documents in our archives related to previous graduate students. Some are definitely educational records (transcripts, field placement evaluations). Then there are a) letters of recommendation received by the school or written by school faculty/administrators and sent to other schools, b) some correspondence between a student and the school/administration, and other items like c) copies of images or articles from student publications.

The documents span decades.   Most --- but not all--- of these former students are confirmed deceased. Most items in this small group of documents relate to alumni who were/are notable, but in widely varying degrees.

A few of these documents concern a famous alum, who passed away.  An outside researcher is asking about the documents related to that alum, and unfortunately, there are no surviving institutional access policies related to student records or unpublished correspondence in our archives. We want to respect copyright, FERPA, and the alum's estate.

For the educational records, I can't find clear guidance on how long FERPA access restrictions last, but other academic collections seem to allow access 50-75 years after the former student's death.

So, a few questions:

1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
 

2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
 

3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?

WNYLRC ATTORNEY'S RESPONSE

I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time.  For instance:

  • Documents that are "education records" under FERPA can become simply "records," or "nothing" once the person to whom they pertain has died.[1]
  • Documents that are "private information" under New York's new(ish) SHIELD Act[2] are no longer controlled by the Act if the digital copy is swapped for a copy on paper.
  • Documents that use the "name and likeness" of a deceased performer, currently allowed, will be far more restricted when New York's new Civil Rights Law 50-f, which requires written permission for certain commercial uses, goes into effect on May 29th, 2021.[3]

And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors. 

An educational institution considering levels of access and use of student-related documents[4] has to consider not only these legal factors, but their unique policies.  Factor in fame,[5] and the stakes get even higher. 

Because of that complexity, I could muse/write/talk on this topic for hours.  But let's focus on the member’s specific questions:

1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?


If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.

If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.

But as the member points out, there are other considerations.

2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
 

This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,”[6] then they are by definition "education records" under FERPA.[7]  That is because the FERPA is intentionally expansive.  So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.[8]

BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records.  Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).

So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.

Which brings us to:

3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?

Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts),[9] but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.

For some, this may be a complex and far-reaching catalog of institutional history.  For others, it may be simply hanging onto every program for every graduation ceremony.  And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.

Whether formal and well-funded, or informal and not funded,[10] every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. [11]

If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy.  In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).  

All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks,[12] how does an institution create an archive that suits its stated purpose and conforms to institutional ethics?  Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution. 

I would like to thank the member for this question, it is a good one.  And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!

Thanks.  I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.

 

 


[1] See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights."

[2] Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.

[3] I am writing this on February 10, 2021. 

[4] This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work.  For that, see https://www.wnylrc.org/ask-the-lawyer/raqs/108 and https://www.wnylrc.org/ask-the-lawyer/raqs/91.

[5] What is "fame?"  It's a notion that is taking odd journeys these days.  As I said in footnote #3, I am writing this on February 10, 2021.  Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat.  I bet he can't wait for his 15 minutes to be over.

[6] "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

[7] Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."

[8] There are exceptions to this, of course...one big one being the records of campus police.

[9] I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass).  I read her letters when I need a shot of pragmatic inspiration.

[10] Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet. 

[11] The "Ask the Lawyer" from November 4, 2020 has more about ethical considerations for archival projects: https://www.wnylrc.org/ask-the-lawyer/raqs/178.

[12] For this question, "risk" is not just legal risk, but relational and reputational risk, too.  After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it?  (Of course, there might be).  Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.

Tags: Academic Libraries, Archives, Copyright, Digitization and Copyright, FERPA, Privacy

Topic: Online posting of area drone pictures - 02/23/2021
One of our member libraries has asked me the following question: "We'd like to create ...
Posted: Tuesday, February 23, 2021 Permalink

MEMBER QUESTION

One of our member libraries has asked me the following question:

"We'd like to create an online catalog of drone pictures of our area. What do we need to consider? We know people are posting these pictures on Facebook, and we'd like to request permission to collect them all in a catalog on our website. Please let me know any technical issues or legalities we need to keep in mind. I think it's a good idea, but I don't know exactly how to implement it."

Are drone pictures copyright free as they are in other people's properties and cover large areas? Is it legal to post drone pictures without permission?

Thanks for any thoughts on this topic!

WNYLRC ATTORNEY'S RESPONSE

This is a cool idea—aggregating and cataloging drone shots.   Someone fifty years from now will be very, very grateful for that type of work!

But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security.  How does the library make sure none of those concerns negatively impact the project?

Let's take those in order.

Legal Concern: Copyright

This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone.  They are never the property of the area photographed (unless the property owner is also the photographer).

What is the "one exception" to that ownership?  If the photographer is taking the drone images as part of their regular job,[1] the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).[2]

Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library.  Other than those complications, with the right agreement,[3] permission and use should be simple.

 

Legal Concern: Privacy & Security

The "copyright" section, above, is fairly simple.  Things are a bit more complex when it comes to privacy and security.

There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security.  Here are the most common I could rattle off at a cocktail party:

  • The risk of the images being the result of "Unlawful Surveillance,"[4] which is an “E” Felony in the state of New York.  "Unlawful Surveillance” is (among other things) taking a picture of a person dressing (or undressing) in a place where that person has a “reasonable expectation of privacy” (and they haven't agreed to pose for the picture);[5]
  • The risk of the images being a violation of a person's "right of publicity,"[6] which is using someone's image for commercial purposes without their written authorization.  For instance, if the images were found on a site where they were being used for a commercial purpose.
  • The risk of the images being the result of, or evidence of, trespass, harassment, and other criminal law violations that could result from a person deploying a drone over a residence, business, or area near an airport.

In addition to my "rattle it off" list, I did some research.  If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:

  • The risk that the images are the result of harassing sea otters.[7]

In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation.  We’ll address that more in the last section.

 

Legal Concern: FAA-restricted Areas

The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:

https://www.faa.gov/uas/public_safety_gov/media/FAA_UAS-PO_LEA_Guidance.pdf

I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times.[8]  However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times. 

The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:

https://www.faa.gov/uas/recreational_fliers/where_can_i_fly/airspace_restrictions/

This was so cool, I looked up my part of the state:

FAA UAS Data Map of Western New York.

And now I know where not to fly the drone I don’t own.

 

Sample License for Use of Drone Pictures

Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space,[9] or otter harassment, here is a sample license for securing permission to include them in an online catalog:

 

IRREVOCABLE, NON-EXCLUSIVE LICENSE

[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.

Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.

In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].

 

Signed by Photographer: _________________________.

 

Signed on behalf of the Library: ___________________________.

 

A Final Word on Getting "Permission"

This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.

However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.

Why is that?  If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary. 

Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value.[10]  And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections[11] the project will be able to avail itself of.

Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. [12]

My takeaway in this final part of the answer?   If your project is of academic, historical, or social value, don't let lack of permission be a roadblock.  Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on.  This will lay the groundwork for a strong archive or catalog.

 

Posterity will thank you.



[1] Head Photographer at "Drone Shot Weekly?"

[2] Here is the FAA guidance on media use of drones for newsgathering: https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf.  It’s interesting: even if using a small drone, such use doesn’t qualify for the “hobby” exception, and the drone should be registered.

[3] Do you need the “right agreement?” See the section of the answer called "Sample Agreement" for an example.

[4] NY Penal Law 250.45

[5] JUST TO BE CLEAR: I have 100% confidence that if a library comes across a creeper nude drone shot, they will not include it in an online catalog!  I am just being thorough.

[6] New York Civil Rights Law Section 50.

[7] Per 50 CFR 18.137: "Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones."

[8] Thank you, THANK YOU to the member who sent this question.  Because of you, I got to read the FAA's guidance to local law enforcement for drone-related incidents, which includes this practical guidance "NOTE: Battery life is typically 20 to 30 minutes." 

[9] By the way, it might not be precisely forbidden for your library to post such images, just as a newspaper or academic publisher might reproduce them for purposes of news or scholarship.  But since those categories come with some higher risks (particularly of being told to cease and desist), it is wise to consider consistency with the purpose and ethics of your archive before including them.

[10] I am not saying to not consider them...just don't let them be project-killers.

[11] Such as fair use, journalism privileges, and recognition of the non-commercial nature of the use.

[12] Links to further "Ask the "Lawyer" content on this specific consideration (ethics as a key component to rock-solid archives) are here: https://www.wnylrc.org/ask-the-lawyer/raqs/172 and https://www.wnylrc.org/ask-the-lawyer/raqs/178.

Tags: Archives, Copyright, Ethics, , Privacy, Property

Topic: Archiving images of minors in organizational online collections - 10/22/2020
Our archive was part of a regional project to initiate, scan, and make available church records fr...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

Our archive was part of a regional project to initiate, scan, and make available church records from predominantly African American churches within a city. As part of this project, student/graduate assistants went to the particular churches, scanned the historical records as digital files, and provided those files to [our archive] for public access.

My question is in regards to photographs taken of minors and the restrictions for retention and online display. I would not have selected those particular items for retention, but because I was not on-site during the scanning, I have the files as part of the larger record (church programs, organizational records, committees, etc.). We have signed permissions from the church administration for online access and display of their records. In some cases the photographs are from over 20-40 years ago, in some cases they're much more recent. They're taken at private church events, Sunday school classes/activities, and public events--some as part of photo albums and some as individual files.

I'm struggling with how to treat these photographs and any associated records when I know they display minors. Any advice or direction would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

This question is at the vertex of the law and ethics.  What an institution may be positioned to do with archival images legally might not be what our society demands ethically.  And if the issue impacts real people with real feelings, this conflict can lead to legal claims—regardless of solid footing based on precedent and the law.[1]

When it comes to images of children, who can't legally consent to the use of their images, the ethical issues arising from agency, respect, and self-determination are all the more critical.

The member clearly knows this, and is seeking a direction for assessing how to access, catalog, and use them—if at all. The law is often too blunt an instrument to assess ethical questions, but in this case, I believe the legal steps for assessing the use of such such images can provide a framework for the deeper assessment of the ethical considerations[2] .

Below, I will list the "legal" steps an attorney considers when reviewing a museum or archive's acquisition, but focus on the ethical considerations connected to those factors, especially with regard to use of images of children.

1.  Ownership of the Physical Object

This stage is where an institution looks at the provenance of the object and, if that physical object is to be transferred to the institution, addresses the legal priority of making sure the title is "clear."

Ethical considerations: How did the physical object come into existence?  Was the creator a member of the community being documented, an academic, a journalist, or an "outsider?"  Does it appear that parents or guardians were present?  What was the original purpose of the object?  Does any of that information suggest coercion, exploitation, or invasion of privacy?

Or, as the International Council on Archives puts it in Section 7 of their Code:

Archivists...must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

 

2.  Ownership of the Copyright

This stage is where an institution looks at the original ownership of the copyright of the image, any transfers of those rights, the use of those rights, if the rights have expired or been transferred to the public domain, and if any of those rights are to be transferred to the institution.

Ethical considerations: Who "owns" the rights to the image?  Are the rights financially valuable?  Have they been put to non-academic, commercial use before, or are they likely to be?  Can your institution accept the rights in a way that limits future commercial exploitation of depicted minors?

Or, as the Society of American Archivists puts it in Section VI of their Code of Ethics:

Archivists may place restrictions on access for the protection of privacy or confidentiality of information in the records.

 

3.  Manner of Accession

This stage is where an institution looks at the overall package it is acquiring.  In this case, the member has pointed out that the data collection project may have over-stepped some (formal or informal) boundaries.  Other accession challenges can be donor-imposed conditions, environmental factors, and budget concerns.

Or, as the International Council on Archives puts it in Section 2 of their Code of Ethics:

Archivists should appraise records impartially basing their judgment on a thorough knowledge of their institution’s administrative requirements and acquisitions policies.

...and in Section 5 of that same Code:

Archivists negotiating with transferring officials or owners of records should seek fair decisions based on full consideration – when applicable – the following factors: authority to transfer, donate, or sell; financial arrangements and benefits; plans for processing; copyright and conditions of access. Archivists should keep a permanent record documenting accessions, conservation and all archival work done.

 

4.  Legal Considerations of Content

This stage is where an institution looks for specific concerns caused by the precise content in the materials.  When it comes to pictures of minors, this means assessing if the content is in any way criminal, contains evidence of a crime, if the information suggests they were a ward of the state, if it originated from sealed criminal records, and if the use will in any way be commercial (and thus require permission).

Or, as the Society of American Archives puts it in Section IX of their Code of Ethics:

Archivists must uphold all federal, state, and local laws.

 

5.  Identity of Person(s) Portrayed

This stage is where an institution looks at the depiction of the real person portrayed in the material and assesses if it poses any additional challenges.

Or, as the Society of American Archives puts it in Section VI of their Code of Ethics:

Archivists strive to promote open and equitable access to their services and the records in their care without discrimination or preferential treatment, and in accordance with legal requirements, cultural sensitivities, and institutional policies.

 

6.  Alignment with Mission

An archive or museum will always have a mission—or "charitable purpose"—at its core.  This is how it maintains a tax-exempt status, its charter, and its ability to operate.  Does the contemplated use of the content you are focusing on (the images of children) match up with that mission?  Or it is somehow at odds or unaligned with it?

This consideration warrants a repeat of Section 7 of the International Council on Archives Code of Ethics:

Archivists should take care that corporate and personal privacy as well as national security are protected without destroying information, especially in the case of electronic records where updating and erasure are common practice. They must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

 

7.  Alignment with Collection Purpose

Just as an archive or museum will always have a mission—or "charitable purpose"—at its core, so will a particular collection have a description that sets out its scope, methods, and purpose.  Does the contemplated use of the content you are focusing on (the images of children) match up with that description?  Or it is somehow extraneous or not quite consistent with it?  If sensitive material is not squarely within the scope of the collection, it shouldn't be there at all.

Or, as the Society of American Archives puts it in Section III of their Code of Ethics:

Archivists should exercise professional judgment in acquiring, appraising, and processing historical materials. They should not allow personal beliefs or perspectives to affect their decisions.

 

That's great...but what to do?!?

When faced with a sensitive decision like the one posed by the member, a subject-focused analysis based on the above factors is the right way to move ahead, in one of three directions:

  • If there is a decision to accession the materials and facilitate access, a written protocol for handling the sensitivities should be made part of the policies of the collection.
  • If there is a decision to accession but limit access (something archival values generally counsel against) there should be a clear path through the restrictions and a well-documented justification for the limitations.
  • If there is a decision to decline accession, the basis of the decision should be documented in light of the factors impacting the decision.

In this particular case, any of the three above-listed options might be appropriate.  From the brief description provided by the member, it sounds like the photos were joyful documentation of a community by its own members—not exploitive or rooted in dubious practices. 

But even under a "best case scenario"[3] like the one provided by the member, it is appropriate to develop a checklist based on the mission of the institution, and the goals of the collection, to be assured any archival images with minors:

1) will not be subject to commercial exploitation by the institution or a third party accessing the collection (unless there is properly executed permission allowing such use);

2) were not created in a manner inconsistent with the mission, values, and ethics of your institution; or if they were, the collection parameters address those concerns;

3) are included in a manner consistent with the purpose of the collection; and

4) there is a process[4] for any individual or relative to request removal of an image of a depicted minor.  Since such a request would only come after there was a determination that the image was consistent with the values of the institution and fit within the scope of the collection, any evaluation of such a request should be made based on the reasons for the request.

 

The good news is, the same documentation that shows careful assessment of the ethical factors will help you with any future legal concerns.

And finally, there is one more option for this particular scenario, which is to ask each church to include in their weekly bulletin or routine outreach:

Our church has been selected for inclusion in the ABC institution's online archives. As part of this work, we have provided numerous photos of our events over the years, which include pictures of many of our congregants when they were children. If you have any concerns with your childhood image being included in such a collection, please alert us.  Otherwise, please know that our community records are being preserved for the future!

That way, the church as the original provider of the records can "claw back" any photos that a person might object to, and your archive will have another step in its own records to show it did everything it could to respect people's agency and privacy.

Thank you for a thoughtful question.

 



[1] A critical example of this issue—use of a person's image in ways that raise question of agency and ethics (to say nothing of basic human decency) is found in the saga of the images of people named Alfred, Fassena, Jem, Renty, Delia, Jack, and Drana, all subjected to enslavement in the 19th century.  The images are commonly called the "Zealey Daguerotypes" and the disputes about them start with how they come into being, as well as how they are used in the present day.  For a good summary of this saga, see https://www.nytimes.com/2020/09/29/books/to-make-their-own-way-in-world-zealy-daguerreotypes.html.

[2] "Established" by recognized authorities, not by me.  My go-to for this will be the Code of Ethics of the Society of American Archivists, found at https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#code_of_ethics, and the Code of Ethics of the International Council on Archives, found at https://www.ica.org/en/ica-code-ethics.

[3] This "Ask the Lawyer" is only addressing the question about minors...I am not tackling the fact that the rights to the relatively recent photos may be held by still living people, or relatives!

[4] This does not need to be a flagrant "notice and takedown" process; it can be accomplished through a simple statement like: "The ABC Archive [is accredited by/follows the ethics of DEF]; if you are concerned that the depiction of any individual or the inclusion of certain content in this collection is contrary to those ethics, please contact GHI at ### to share your concern."

Tags: Copyright, COVID-19, Digitization and Copyright, Ethics, Archives, Photographs

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.