Copyright/Social Media FAQs: Defining Best Practices for Museums

Copyright Law

Drawing via Erik J. Heels

As our culture of social sharing has reached its boiling point, the lid has officially been blown off of traditional notions of copyright and intellectual property law. From the get-go, social media sites have imposed opaque policies that make it nearly impossible to understand exactly what is happening when you publish a post to their platform. While some extreme legal cases involving social media and copyright law have been settled in court (think YouTube, XM Radio, etc), there have been few decisions that seem straightforward enough to apply to a general “best practices” framework, and so we still haven’t come to a place where there’s a set of rules that everyone can agree on. This puts museums in an uncomfortable place, as we seek to function in ways that keep us relevant (i.e. by liberally sharing images of artwork), but we’re also keen on maintaining positive relationships with artists and their estates. This begs the question, how can museums avoid copyright infringement online, but also do good work and live up to people who expect to see high-quality images of artwork delivered straight to their social media feeds?

Although I am NOT a lawyer or an IP expert, I’ve spent the past couple of years attempting to understand how copyright laws play out on social media, and I have generated a basic set of personal guidelines that I use to keep myself feeling good about my actions on behalf of SFMOMA. Below, you’ll find a list of frequently asked questions – both questions that I’ve mulled over with my SFMOMA co-workers, or questions that colleagues have sent my way. This list is nowhere near complete, so please, if you have additional questions or insights to add, please post them in the comments section below so that we can use this post as a working document!

Disclaimer: this is not legal advice, nor does this reflect SFMOMA’s institutional position on the issues. Rather, this is my own attempt to air out my thinking in order to share with and learn from others in the field.

MY THOUGHTS ON SOCIAL MEDIA/COPYRIGHT FAQs:

Should you always seek clearance from artists, estates, and/or lenders before reproducing images of artworks on social media?
Yes. If artwork is NOT in the public domain (get more info about that here), you must make sure to get permission for ALL uses, including social media. At SFMOMA we have worked to get social media language added to exhibition contracts so that we know well in advance of a show opening which artworks we will be allowed to directly post to social media platforms. When I want to share an image of an artwork that’s not directly related to an exhibition (i.e. an artwork that we haven’t recently negotiated a contract for), I consult our archives and/or check in with our Intellectual Property Associate to see what SFMOMA’s past agreements with the artist have looked like. Some artists are quite happy to allow us to use reproductions of their artwork for a broad array of purposes, free of charge, while others are most definitely not. I also work with our IP Associate to make sure I always have the best caption to use with the image reproduction, which is always important, no matter what!
When photographing installed artwork, do copyright laws still apply?
Yes- an image taken of an artwork from a straight-on angle would be considered a copyright infringement if you do not have express permission to reproduce the artwork. To avoid problems with this, you can contextualize the artwork in a situation or from a particular point of reference. To do this, you can include people in your shot of the installed artwork, take photos at an angle (so that the artwork is clearly positioned as an object in space rather than a reproduction of the artwork), or use detail shots (i.e. hone in on the brush strokes or a specific area of the work, while being sure to indicate that your image is not a photo of the entire artwork).

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Do you require signed releases prior to posting images of people online? What about with children?
Yes, you should always get a release from anyone who you’re photographing if you think you’ll want to feature the photographs on social media – and with children, absolutely make sure to get their parents’ permission. If you’re taking photos at a party or crowded event where acquiring releases from everyone pictured would be impossible, you can post signage that says something along the lines of, “we are taking photos tonight; please let us know if you prefer not to be photographed.” When using these photos, be careful to veer away from shots that focus too closely on any one person. As a general rule of thumb, you should get releases when you have a photographer taking photos of people engaging with art, and make sure to include social media language in any releases that you ask folks to sign!
When photographing an artwork for social media, is quality control an issue?
This is totally up to your institution. I manage SFMOMA’s social media accounts and have set high standards for our accounts, meaning I don’t want poor-quality photos of artwork to end up in front of our followers/public. As a personal rule of thumb, I avoid using Instagram filters when posting photos of artwork, since those tend to completely change the look and feel of the work (altering the colors, cropping, etc of an artwork is almost always a no-no). When possible, I try to avoid phone photography (with the exception of Instagram). However, while professionally-shot photos are most likely preferable as a way to honestly and professionally convey the nature of your museum’s exhibitions, there’s also something great about relinquishing some of the buttoned-up quality control and allowing your staff’s personal photography styles/ideas to shine through. Just make sure that anyone posting on behalf of the museum knows the basics of what is/isn’t acceptable, both in terms of copyright law, as well as in terms of your institutional policies.
Where do you draw the line between innocent sharing and copyright infringement?
This comes down to the basic rule of thumb with copyright: do not publish an image that you have not been granted the rights to reproduce/publish. In my opinion, publishing online = uploading original content. Therefore, while I would not feel comfortable uploading an image of a Rothko painting to SFMOMA’s Tumblr without permission, I would feel good about re-blogging an image of a Rothko from another museum’s Tumblr. In my logic, it is the responsibility of the original poster to comply with the terms of service of the platform, i.e. that the image can then be re-shared through the platform.
HOWEVER, this can get tricky, since the case of use can come into the situation and confuse this logic. What if a media outlet (who can post images of artwork under the “fair use” argument, since they’re using it for commentary purposes) posts an image of a Rothko, then I reblog it to promote a Rothko show that’s on view? In this case, I believe SFMOMA would be infringing on copyright law, since I’m now using the Rothko image for a completely different purpose (promotion) than that that the original uploader (fair use). Essentially, you should always keep in mind the purpose of your post. If it’s promotional, you’re far more likely to be walking in a shady territory.
What about images pulled from the Internet?
The same laws apply whether an image is pulled from your institution’s collection, another museum’s website, Tumblr, Pinterest, etc, whatever. ALL intellectual property (this includes artwork, writing, research, music, etc) is subject to copyright, so you should be sure to ALWAYS cite the original source and use links rather than direct copying when you can’t get solid permission. On social media sites, when you are re-posting or re-sharing something, another rule of thumb is to make sure that the original source is credible (it’s much safer to re-blog an image from another museum or an artist’s own Tumblr versus an image found on a random person’s Tumblr, since people using social media for personal use tend not to consider copyright much at all). And of course, CHECK YOUR FACTS!

The good news: to my knowledge, there has never been a case where a museum has been significantly fined for violating a copyright law on social media (correct me if I’m wrong!). In most cases where a violation is discovered, you will first be asked to a) pay the artist’s estate for the use, or b) take down the image. However, in order to maintain good relationships with your artists/lenders/estates, I would always air on the side of caution 🙂

ONE LAST THOUGHT: context is key. Perhaps the worst offense on social media is posting an image that includes no artist credit, or worse, no caption explaining what the image is, why you’re posting it, or where to go for more information. When an image is used in an educational context, there can be a fair-use argument, so if you can do your best to always provide educational context with social media posts (which you should be striving to do anyway), you’ll be far better off in the law’s eyes.

 

What other questions about social media and intellectual property do you have? Has your institution struggled to clarify issues, and if so, what have you learned? How can museums work together to increase our ability to share images of artwork on social media?

 

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