From drones to fair use: the hottest topics in museum law

Nationalistic appropriation, brand control in reality TV shows, YouTube take-downs: American Law Institute’s annual course covered it all

New media, copyright law and museum ethics were among key issues raised at the American Law Institute’s annual course on museum law, co-sponsored by the Smithsonian Institution in Los Angeles, between 6 and 8 April. Museums’ policies toward drones came up too.

As art evolves, it presents lawyers with new challenges. “Contemporary art itself is changing with the media, making copyright issues more difficult,” says the New York-based art lawyer John Cahill. Meanwhile, amid spiralling destruction of cultural heritage, the role of museums has never been more important, said the conference’s keynote speaker James Cuno.

“Of the world, for the world” Cuno, the president of the J. Paul Getty Trust, said that works of art, especially antiquities, have the capacity to connect museum visitors to the “long line of admirers” who had come before, deepening the viewer’s “very humanity”.

Citing migrants fleeing the Middle East and West Africa in search of better lives in Europe, Cuno questioned whether the concept of national identity “is the right measure of identity at all”. Cultural heritage does not have to be divided by political boundaries, he said. Cuno, who has previously criticised what he sees as nationalistic repatriation efforts by self-interested governments, questioned the idea that inanimate art objects have national identities and must therefore be returned to their “homelands”.

New copyright considerations Museums need to brush up on fair use. Eryn Starun, an assistant general counsel at the Smithsonian, recalled a digital copyright case last year in which a mother posted a YouTube video of her children dancing to a Prince song, only for Universal Music to use the take-down procedure created under the Digital Millennium Copyright Act to protect copyright owners. The mother sued, arguing that Universal had abused the take-down notice process and should have first considered whether the video was protected as “fair use” (for example, as news, satire or commentary).

The federal appeals court in California agreed that Universal had jumped the gun. It ruled that before sending a take-down notice, a copyright owner must first consider whether the material is protected. The decision has free speech implications for museums because it may discourage abuse of the take-down notice by copyright owners who might otherwise not want to consider the fair use rights of others.

…but confusion over fair use remains Some argue that the courts must offer clearer guidance on exactly what qualifies as fair use. David Nimmer, the renowned US copyright law expert, questioned the trend in US courts that makes “transformative use” the key question when artists copy another’s work. In applying the fair use exception, which protects the copying of others’ works in certain circumstances, courts have asked how “transformative” the use of the copyrighted work is. For example, the Google Books project was considered “transformative” because it allowed internet searchers to search vast quantities of written material in ways not available before.

But Nimmer criticised a 2013 ruling by the New York federal appeals court that concluded Richard Prince had sufficiently transformed the photographer Patrick Cariou’s photographs of Rastafarians, giving the works new meaning and therefore passing the fair use test. Nimmer argued that Prince’s works greatly reduced the potential value and marketability of Cariou’s own copyrighted material, flunking one of the four tests to be considered in fair use analysis.

The “transformative” approach marginalises this important factor, he said, adding: “The pendulum swung to its apogee in the Cariou case and must swing back.” He cited the criticism of the Cariou decision by the Chicago federal appeals court in 2014, which noted that US copyright law gives artists the exclusive right to create a derivative work.

Drones at the museum? “I don’t think anyone wants a hundred drones in a museum,” Danielle Fisher, an assistant general counsel at the Smithsonian, told course attendees. However, a museum may want to apply to the Federal Aviation Administration to use a drone, as colleges and universities are doing, for research or marketing purposes, such as filming crowds.

Fisher advised museums to “choose the broadest uses in applying to use a drone,” adding that consent has to be obtained from anyone who would be filmed, with acknowledgment of the risk that “the drone could fall”.

If an artist wants to use a drone—for example, to film a remote installation in a forest that would be difficult for the public to access—then ground rules should be set. The museum should confirm how high the drone can fly and make sure to secure all relevant authorisations.

Fisher noted that the Smithsonian is a “no-drone zone”. (It bans selfie sticks too.) But “in 2020 with millions of people coming in with itty-bitty drones, what will happen?”

The museum on film Before the Brooklyn Museum in New York opened its doors in 2010 for the reality television programme Work of Art: The Next Great Artist, a competition for contemporary artists that gave the winner a solo show at the museum, it faced numerous legal issues. Getting “as much control” as possible over the museum’s name, image and identity was “the dominant theme of our negotiation” with the producers, according to Francesca Lisk, the museum’s general counsel. The proposed contract from the film company would have allowed a blanket licence to use the museum’s name, image and works, and the museum refused to sign.

Lisk’s advice: establish strict rules for use of the premises, specify locations for filming, and require a right to review and comment on all scripts and content.

Social media minefield Social media is presenting new legal challenges for US museums, including how to make websites accessible to the disabled under the Americans with Disabilities Act. US government accessibility guidelines that apply to museum websites will be issued in 2018. In the meantime, non-profits have been sued and criticised for their alleged failure to make websites accessible to the disabled.

The Smithsonian’s Starun pointed to existing tools that can scan a museum’s website and identify what does not meet current online accessibility guidelines. A key point, Starun said, is to provide a means to let those with visual, hearing or dexterity problems opt out of having their web browsing tracked to avoid a privacy violation claim.

Prickly issues Lawyers who work inside a museum remain subject to US codes of professional ethics for attorneys, under which the lawyer’s client is the museum rather than any individual who works there.

If, for example, a board member gropes an employee, the lawyer cannot discuss the matter confidentially with the board member or discourage the employee’s complaint, said Laurie Levinson, a professor at Loyola Law School in Los Angeles. Instead, the attorney should call for a standard investigation and report the matter to the board.

“Do board training on sexual harassment,” Levinson urged, citing recent claims against two University of California faculty members. “What will it mean for the evening news not to report your new collection, but your new grope?”

And if the nightly news seeks comment on a recent lawsuit against the museum, how should you handle it? If you appear on the TV show, Levinson said, your comments may be edited to “your worst moments”, but saying “no comment” could lead people to think you are sunk. While a lawyer cannot make a statement that would materially prejudice an adjudication proceeding, it is fair to give the press the documents already filed in court, “which are publicly available and are protected from a defamation lawsuit,” Levinson said.