RAQs: Recently Asked Questions

Topic: Donation of photos for digital archive - 6/8/2018
Recently, our library has been given a collection of photographs that were previously on display i...
Posted: Friday, June 8, 2018 Permalink

MEMBER QUESTION

Recently, our library has been given a collection of photographs that were previously on display in a local business location. These are photos of the customers of the business, many are children. These photos span several decades and are important to many. 

We would like to digitize these photos and make them available via the internet because we believe these to be of sentimental, cultural, historical and academic value to our region and beyond.

The photos were given to our library by the business that had previously displayed them and also produced the photos. What are the issues of rights and permissions raised by making these images freely available online, especially given that many of those in the photos are children? Thanks for your help.

WNYLRC ATTORNEY'S RESPONSE

To answer the member’s questions, we must start with the fundamentals.

When accepting a donation of culturally significant photos, an archive should have a donor agreement or other documentation that addresses the following things:

Does the donor solely own the physical photos?

Is physical ownership being given to your institution?

Who authored the pictures?  If not a company, what is their name and birthdate?

Does the donor solely own the copyrights?

Is copyright ownership being given to your institution? If not, what permission comes with the physical donation?

May the receiving institution license use by others (a “transferable license”)?

Were the copyrights registered?

Are there any reservations or conditions on this gift?

If donated as part of a will, obtain a copy of the will.

What is the value of the gift? (for tax purposes, if the donor wants to claim a deduction)

Confirming the scope of the donation, the conditions, and value of the gift creates a firm basis for future decisions, including how to address the potential risks of posting pictures of minors.

It is also helpful to get as much additional information as you can at the time of the donation:

To the best of the donor’s ability, what is the date, place, and identity of those in the pictures?  What else of significance is being depicted?

What type of equipment was used to product the images?

Why were the images gathered?

Who collected the images?

Why is this collection significant; why should it be preserved and made available to the public?

Why does this collection fit into the mission of your institution?

Knowing as much as possible about the provenance and purpose of a collection makes it easier to access the protections built into the law for journalism and scholarship.  And with that background, it is easier to assess the risks when the collection involves human subjects.[1]

Those risks include:

Will this content be used by the institution in a way that violates New York’s bar on use of names and likenesses for commercial use? [2]

Are there any ethical considerations that bar including these images in the collection?

Is this depicting any personal health information?

Are there special sensitivities we must consider and plan for?[3]

Will the names of those depicted be included in the metadata of the digital archive?  If so, why is that necessary?

When it comes to minors (those under 18), additional risks are:

Will this reveal a minor’s youthful offender status?

Will this reveal participation in the social services system?

Does this depict an illegal act?

If the answer to any of the last eight questions is “yes,” a consultation with a lawyer, and perhaps an an image-by-image review, may be warranted.  But while that may time time and resources, it may be worth it, since there still may be a way to digitize the photos and make them available via the internet…especially if they have sentimental, cultural, historical and academic value to our region and beyond.

 


[1] At an academic institution, if the images depict human subjects (of any age) consult the Institutional Review Board (“IRB”).  Depending on how you design your project, it could be important.

[2] Here is the actual text of the law: “§  50.  Right  of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the  name,  portrait or  picture  of  any  living  person  without  having first obtained the written consent of such person, or if a minor of his or  her  parent  or guardian, is guilty of a misdemeanor.”

[3] Depictions of exploitation, enslavement, abuse, or images that could be considered an “illegal sex act” (as defined by §130 the penal law) for instance.  From the sound of it, that is not the case here, but at “Ask the Lawyer!” we try to be thorough.

Tags: Digital Access, Digitization and Copyright, Copyright, Donations

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