“Can I use this?” It’s a question I hear on a daily basis as the Rights and Reproduction Specialist at the National Portrait Gallery. In today’s digital world of social media, smartphones, and multimedia kiosks, copyright has become a popular topic of conversation among museum staff, but for many of these professionals, copyright management for digital content is uncharted territory. When responding to the demand for more accessible and open digital collections, museums today face new and often complex challenges. For example, how can a museum manage the growing needs of the digitally savvy visitor while also respecting the intellectual property of artists?
Digital platforms are now the prevailing means through which people consume information. In order to remain relevant, modern museums are pushing the boundaries of physical exhibition displays to include more immersive and interactive digital experiences. Technology is helping museums improve their engagement with audiences and broaden their educational reach. For these reasons, museums like the National Portrait Gallery are generating more media information than ever before.
The explosion of image-based creative content is rapidly changing the rights and reproductions landscape. As attorney Walter G. Lehmann writes, “the ease of distribution in the digital realm poses new challenges.” Cultural institutions are beginning to recognize that conversations about copyright need to be a fundamental part of project workflow. While rights and reproduction managers do not need to earn law degrees, they need to keep abreast of rights-related issues regarding digital reproduction usages and learn how to respond to copyright questions. Museum rights managers are also becoming more familiar with one important doctrine in U.S. copyright law: fair use. The fair use provision provides educational institutions, such as museums, with the protection to use copyrighted works in their collection for certain non-commercial educational purposes. A museum’s educational role in society makes it uniquely qualified to apply the fair use doctrine. Fair use is complex and does not cover all museum usages, but as museums produce more digital experiences, rights managers are learning more and more about the value of the fair use doctrine.
As a public institution, the National Portrait Gallery is committed to making its diverse collection available to researchers, publishers, and the general public in support of scholarship, education, and personal enrichment. The staff is constantly thinking about new ways to reach a wider audience using the museum’s various social media platforms. From touch-screen interactives inside the galleries, to a more robust online collection database, the Portrait Gallery is always implementing new layers of interactivity for its audience. As staff, we seek to connect with the public in enriching and engaging ways through digital mediums, and consequently, we find ourselves wrestling more and more with this evolving and very complicated world of copyright. We’re learning how to apply fair use to some educational contexts, but at the same time, we are developing stronger working relationships with artists and estates so that we can obtain broader permissions more easily. We walk a fine line between being conscientious about artists’ rights and meeting the needs of our visitors. It is a complicated endeavor, and while we have made tremendous progress, we still have a long way to go before we find that happy medium.