Submission Date:
Question:
I am working with an artist on a future display at our library. He is a regionally known professional artist. He is working on an engraving that makes use of a short poem by a deceased, well-known poet. He has learned that the poem is still under copyright and that the poet’s estate is active, but believes that unless it gets renewed, the poem should be in the public domain by the end of the year. If the exhibition is to be before that time, should he apply for permission to use it? If so, is that likely to be expensive?
Answer:
This is a great question, since it shows how libraries not only provide access to information, but serve as patrons for the arts. This nurtures local culture, spurs community creativity, and brings special attention to a library.
As the member points out, though, this role also comes with its own set of legal issues, including copyright concerns.
“Ask the Lawyer” was created to provide practical guidance and tips to libraries, museums and archives on the front lines of culture. So, while there are many excellent treatises out there on copyright, fair use, contributory infringement, estate law, and contract law—all of which are showcased in this question—rather than wax philosophical, this answer will try, above all, to be useful to a librarian as they work with their community to nurture new art.
With that in mind, here is a checklist flowchart of “red flag” issues, and potential solutions, to help you find the smoothest legal road for bringing custom art to your library.
Bringing Custom Art to Your Library
Contract Development Flow Chart
Step 1: Establish the vision and shared goals for the projectWork with the artist[1] to develop a carefully description of the project.
- What media is it in?
- What is the title?
- Is the artist ready to provide contract assurances about copyright, image rights, or trademark?
NOTE: In other words, is the artist considering any permission they might need, or fair use they need to make? In this exercise, they should rely on their own lawyer (sometimes provided pro bono by an arts organization), and never on input from the library.
- What is the location of the display?
- Will the library promote the work through a special event?
- Will there be special conditions to prevent wear and tear?
- Are any library employees assisting with the production and/or installation?
- Is this project wholly or partially funded by a grant? If so, does the grant have any special requirements?
- Confirm the artist’s name, address, and if relevant, get their 1099 form.
- Every project is unique; what special considerations does this one have?
NOTE: All discussions should make it clear that until a formal written agreement is reached, discussions are just speculative, and not a contract for services.
Step 2: Establish how it is being paid for
- Make sure all the financial details are clear.
- Who is paying for supplies?
- Is the artist being compensated?
- If so, how much?
- When are the payments to be? Are they tied to project progress or completion?
NOTE: if the artist is being paid (and they should be), or is selling anything based on the end result, and the materials are not becoming part of the library (like a mural or a custom Narnia-inspired wardrobe that is actually a built-in bookcase), the library should not purchase the materials…but the artist can factor the cost into the final price.[2]
Step 3: Establish ownership
This step controls a lot of the latter considerations.
- Is the library to be a co-author or co-owner of the work?
NOTE: If the answer is “yes,” a plan for jointly managing the asset should be developed. Generally, to avoid this complication, you want the answer to be “no.”
- Who will own the physical object?
- Who will own the copyright(s)?
- If the library won’t own the copyrights, what permission does it have to duplicate or use the work? (examples include: put a copy on the website, make fund-raising t-shirts, display it in a window, digitization and inclusion in online archive, or any use the library wants).
- Will the author be using an alternative form of copyright licensing (like Creative Commons) to ensure community access to the work?
Step 4: Establish clear boundaries
This can help avoid confusion and stress later.
- Whose workspace is being used to create the work?
- What support is the library providing during creation?
NOTE: “Nothing except moral support” is a great answer.
- Who is transporting the work to the library?
- If it requires installation or hanging, who is doing that?
- What are the mutually-agreed methods of promoting the work, and what methods (if any) are forbidden? For example, some libraries might encourage promotion via Facebook, while others might regard that as less than desirable.
Step 5: Confirm critical responsibilities
- When is the work to be completed by?
- When is payment due?
- Who is responsible for securing any necessary copyright permission or image rights?
NOTE: Unless you are co-authors on an exciting joint venture with a very well-developed contract and express insurance provisions, clearance and permissions should never be done by your library. Further, when you develop a final agreement for the work, it should contain a clause stating that the artist is the sole author of the work, the artist is responsible for obtaining necessary permissions, that all necessary permissions have been secured, and that the artist will hold harmless, indemnify, and defend the library (and its trustees, employees and volunteers) in the event a third party claims the work is infringing any copyright, trade mark, image right, or right to privacy.
- Who is responsible for organizing any promotional events?
- Who is responsible for damage to the work during display at the library?
- Who is removing the work from the library when complete?
Step 6: Protect the library!
You can tell by the questions on the worksheet that my final guidance on is this: when developing a public art project, be picky about the details, and turn them into a good contract.
Because there are too many variables amongst the libraries (public libraries, college/university libraries, hospital and prison libraries, museums, private archives), I cannot offer a standard template for this. A public library is in a different place than a library within a college or museum; they all live in different regulatory universes, have different vulnerabilities, and have different rules and obligations. This is why simply “borrowing” a template from another institution is often a bad idea.
However, I can say that any good contract will address the above-raised issues, and if you have used this worksheet in advance, assembling such a contract will be easier.
Step 7: Promote Culture, Enjoy Art
I know: nothing kills inspiration faster than the word “indemnification.” This worksheet brings up a lot of messy details that, if brought up at the wrong time, can hamper creativity.
But I have found that addressing these details early actually helps a project move forward. It gives the library and the artist clarity about their roles. It gives the security of assurance about vital details. Most importantly, by inspiring forethought about possible impediments, it makes challenging projects possible.
So revel in the details, make room on the walls, and let the art flow!
[1] You’ll see that throughout this checklist I also refer to the artist as the “author.” The copyright law uses “author” as a catch-all term for the creator, whether they are a writer, photographer, sculptor, etc…
[2] I know, if the library can buy the materials, they’re tax free! But both the state of NY and the IRS are pretty clear on this.
