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:
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?
- Copyright, Museums, and Licensing of Art Images via Columbia University
- Social Media Policies & Museums via the Indianapolis Museum of Art
- Nonprofit Social Media Policy Workbook via IdealWare
- Online Database of Government and Non-Profit Social Media Policies via Chris Boudreaux