MARAC Fall 2009: S11, Scattered Treasures: The Stewardship of Private Collections in the 21st Century

Rotunda, City Hall, Jersey City, New Jersey, during the MARAC evening reception, 30 October 2009.

Although it's been years since I've worked with personal papers, I always like hearing about them, and I'm particularly glad I attended this session: one of the papers touched upon an electronic records issue that crossed my mind earlier last week, and the other focused on copyright law, about which I don't know enough.

Unfortunately, one of the presenters, Donna Wells (Moorland-Spingarn Research Center, Howard University) was ill, but session chair Wilda Logan (U.S. National Archives and Records Administration) read her paper, which focused on what can happen when materials unexpectedly leave the custody of creators and their families.

In some instances, the severance of custody is accidental. After Washington, DC photographer Nestor Hernández died in 2006, his father placed a large number of his prints and other materials in a storage cubicle, but didn't tell other family members where the materials were housed. After Hernández's father died unexpectedly a short time afterward, the rent went into arrears and the contents of the cubicle were auctioned off. The devastated family then learned that the buyer was selling the prints at an open-air market for $3.00 apiece. Their only recourse was to assert their intellectual property rights whenever someone attempted to publish one of the images; the sale of the contents of the cubicle was perfectly legit.

In others, surviving relatives or other third parties see personal papers as sources of income. For example, civil rights icon Rosa Parks left her papers to a non-profit that taught civil rights history, but her surviving relatives successfully contested the will and the papers are being sold at auction. Wells has also gotten calls from foreclosure companies wanting to know whether photographs and other materials left behind by evicted residents are valuable; of course, these companies want to recoup lenders' losses, not donate materials to a repository.

These experiences have led Wells to give the following counsel to donors and their families:

• Know the procedures governing rental of storage facilities and what will happen to your property if the rent falls into arrears, and make sure that someone else knows where your materials are being stored.
• Give a trusted relative or friend your e-mail, online photo storage, etc., passwords.
• If you use an online storage service, make sure you know what will happen to your resources if you die.
• Let a trusted relative know what you want to have happen to your online and physical materials, even if you don't express your wishes in your will.

In an age when the digital equivalents of personal papers are being kept in the cloud, manuscript curators are going to spend a lot of time dealing with the complications of death in the digital era -- and all of us are likely going to feel ethically bound to provide guidance to families who don't want to donate materials but do want to access and preserve resources created by deceased loved ones.

The next presenter, Janet Fries (DrinkerBiddle) is an attorney who specializes in copyright and intellectual property law and who has represented numerous artists, authors, and musicians. Using the fate of Nestor Hernández's prints as a starting point, she furnished an overview of copyright and other laws. I'm going to emphasize just a few of the high points:

• A person who buys a print does not automatically get the rights associated with the print. When people bought Hernández's prints on the street for $3.00, they didn’t get the right to do anything with these images. When and if the prints are duplicated, the family will be able to discover who has various prints and to assert their rights.
• Copyright can be transferred via a will or a trust, and the laws of intestacy apply as well.
• Creators and their heirs have the right to terminate the transfer of copyright: existing law allows the person or entity who undertook the transfer to terminate or renegotiate the right of transfer after 35 years -- even if the transfer document purports to transfer rights in perpetuity. Heirs can also exercise this right. This right is little known and seldom exercised, but it’s really important.
• Copyrights don’t transfer by accident: handshake agreements aren’t sufficient.
• Fair use is very helpful but very unpredictable, and there are no hard-and-fast rules; don’t rely on any myths that come your way. The nature of the use has bearing: educational use and commentary are favored, but there are other factors.
• Repositories need to be aware that granting rights to others has pitfalls. Being in the chain of rights means being in the chain of liability. Repositories may also be vulnerable to charges of contributory and vicarious liability; refusing to make copies for for-profit uses might be a good idea, and making copies contingent upon the user’s securing of a licensing agreement is also a good idea.
• Rights of publicity governing people depicted in images vary from state to state. Be careful about using images if you lack signed release forms. Other materials may also be covered by this right; in New York State, for example, image, voice, name, and biographical details may not be used for trade or advertising without the express written consent of the person.

Fries also discussed how creators can spare others the Hernández family's experience. She encourages the artists she represents to, among other things, create inventories documenting where their works are stored and the intangible rights (copyright, moral right, trademark, patent, contract) associated with each work and to develop estate plans; in order to help them do so, she's developed a variety of forms that they can use. If an artist doesn’t want members of his or her family to know where works are stored or fears that listing locations will make theft easier, she stresses that telling no one is an illogical extension of a logical premise; information can be shared with a trusted friend, kept in a sealed envelope in a locked drawer, or kept in an attorney's office (but not a safe deposit box!)

I'm really not doing justice to Fries's presentation, which segued nicely into an extended Q&A about various copyright, permissions, and other legal issues. Copyright law is incredibly complex, and Fries excelled at giving us a sense of some of its nuances while dispensing lots of practical advice.