Determining the copyright status of the digital materials you will make available online can seem daunting, but there are tools available to help you assess your organization’s risks and responsibilities. Before you get started, think about the following:

• Owning a physical item does not necessarily mean you hold the copyright to that item.
• Digitizing an item does not change its copyright status or create a new copyright.
• Regardless of copyright status, there may be ethical and privacy considerations about how items are displayed or used.

Obtain permissions: bronze level

Donor Agreements

Does your deed of gift form include specific language about digitizing and sharing donated items online? Be aware that a donor can transfer copyright to you with a donation only if they are the copyright holder.

If you don’t already use a deed of gift form, donor agreement, or gift agreement, now is a great time to adopt one. Now is also a good time to dig through your files, physical and digital, to find existing documentation that will shed any light on the status of permissions or agreements in your collections. Did past archivists, volunteers, or donors contribute notes or forms documenting how materials could be used or shared in the future?

Forms and other documentation should be kept with the related collection materials, either physically or digitally. For instance, you could save a signed donor agreement in a “Copyright” subfolder in the collection to which it applies. You can also write out the information you have in a text file and save it with the collection or the digital materials.

“Digital donations,” in which cultural heritage organizations scan photos, scrapbooks or other materials for community members and keep the digital files but return the originals to the owner, are becoming more common. So are crowdsourced or community-sourced collections, in which community members contribute their own writings or artwork to a shared digital collection. A signed deed of gift or permission form is needed in these scenarios too.

While we can’t give you legal advice on collection donations, below are several examples you can borrow from and customize for your needs.

Permission Forms

A permission form, also known as a release form or consent form, is needed whenever your organization works with community members to create new content, such as oral history interviews. Any permission forms should clearly state how (or if) the materials may be shared online and how copyright will be retained or transferred, if applicable.

OBTAIN PERMISSIONS: SILVER LEVEL

Public Domain

Many of the historical materials in your collections may be in the public domain, which means that copyright protections do not apply^[1]. Materials in the public domain may be freely used by anyone, for any use, without permission or attribution. In addition, whether the materials are in the public domain or in copyright, any digital resources you make available online can be used by the general public for activities defined as Fair Use by Section 107, United States copyright law, including teaching, research, and news reporting^[2].

What’s in the Public Domain?

More than you might think! To figure it out, you’ll need to know whether an item is considered published or unpublished, and, if possible, the date it was created.

Published works include:

• Books and booklets
• Brochures and pamphlets
• City directories and phone books
• Maps
• Newspapers and newspaper clippings
• Postcards without writing on the back
• Yearbooks
• Commercially released films in all genres (for example: fiction, documentary, educational)
• Broadcast television and radio (local and national programming, such as tv news and sitcoms)
• Commercially released music and audio recordings

Copyright assessment for published works

Unpublished works include:

• Architectural drawings
• Diaries
• Ephemera
• Letters
• Manuscripts
• Photographs (unless you are sure they were published)
• Postcards with writing on the back
• Home movies
• Amateur footage
• Audiovisual outtake material (material created in the process of making a published film, video, or audio production but not used in the final product)

Copyright assessment for unpublished works

Unpublished items that are simply a collection of facts generally do not need to be assessed and can be considered public domain. These include items such as ledgers and account books, land records, tax records, deeds, invoices, receipts, bills, and permits^[3].

In Copyright? Get Permission!

If materials are not in the public domain, seek permission from the copyright holder to put them online. Copyright may lie with the original photographer, artist, or author; their heirs (if legally transferred through a will, for instance); or, in the case of works for hire, with the agency that authorized the creation of the original work (for example, the copyright to an image from a staff photographer working for a newspaper or magazine would, in most cases, belong to the newspaper or magazine publisher). Keep a record of when you contacted rights holders and what response (or lack of response) you received.

Remember, libraries and archives have the right to preserve materials, regardless of copyright status, under 17 USC § 108 of United States copyright law^[4]. This provision explicitly allows libraries and archives to make up to three copies of a work for preservation purposes. The items being preserved can be in any format (text, images, sound, etc.). Furthermore, the copies can be digital, so long as they are not distributed digitally nor made available to the public in a digital format outside the premises of the library or archives. In other words, you have the right to digitize an in-copyright work, as long as you don’t put it online or make it available outside your library or archives without the permission of the copyright holder.

Orphan Works

What if I can’t find the rights holder? Or what if I get no response after multiple attempts to contact them? It may be impossible to identify or locate the rights holder for many historical materials. In that case, the materials are considered orphan works^[5]. Many libraries and museums choose to make orphan works in their collections available online.

Orphan works are a particularly common issue with published audiovisual materials, including local films, educational films, or documentaries made by companies that no longer exist. The U.S. Copyright office has deemed that with a “good faith” qualifying search, these kinds of materials can be made accessible, and if a copyright owner comes forward after that point there are specific steps to be taken (outlined in the “Notice of Claim Infringement” section on page 62 of this document).

When weighing your decision to make orphan works from your collection available online, keep in mind that making materials that may be in copyright available for free puts your library or archives at less risk than charging a reproduction fee, selling copies, or otherwise making money from those same materials.

Privacy and Ethics

Even if materials are in the public domain, there may be other reasons not to share them publicly, online or otherwise. Be mindful of privacy issues and other ethical concerns, which are different from copyright issues.

Give special consideration before providing access to:

• Materials created by or depicting Indigenous communities
• Materials created by or depicting protected or vulnerable populations, such as minors, incarcerated individuals, or medical patients
• Materials containing personal or private information (e.g. home address, birth date, medical history)
• Materials depicting emergency response, crime scenes, or disaster relief efforts that may include images of wounded or deceased people
• Materials created by families who may never have intended them to be publicly available (e.g. home movies with unidentified creators)

Proceed carefully with any of these types of materials. In the case of Indigenous materials, try to contact representatives of the Native Nations to open a dialogue about the materials to be digitized. The Protocols for Native American Archival Materials provide a guide to such dialogues^[6]. It may also be appropriate to discuss digital return of Indigenous materials to their communities. Digital return is the transfer of cultural heritage materials back to a community in high-quality digital form^[7].

Anticipating Re-Use Inquiries

Once you make collection material available online, you may get requests from users regarding permission to publish or re-use material creatively in their own research and projects. Maintaining documentation of any copyright research that has been done on the objects, and even better, publishing that information online alongside the digital content, will help in these situations. Many users will benefit from an understanding of Fair Use in U.S.copyright law to assess their situation.

OBTAIN PERMISSIONS: GOLD LEVEL

Rights Statements

Each item you make available online should be accompanied by a statement describing the item’s copyright status. This rights statement helps users understand what they legally can and cannot do with your materials.  We recommend using one of the twelve standardized rights statements from RightsStatements.org, which provides a consistently-worded explanation of the copyright and reuse status of your digital items.

Creative Commons Licenses

If you’re creating new digital content, you might consider assigning a Creative Commons license to your work. Creative Commons (CC) licenses are a standardized, widely used method for people and organizations to grant copyright permissions for their creative and academic works, ensuring proper attribution and allowing others to make use of those works.

Note that Creative Commons licenses can only be applied by the rights holder. If your organization does not hold the copyright to materials, then you cannot apply a license to those materials, but you can encourage the rights holder to do so. You might even consider including CC license options in your deed of gift or permission forms. To see an example of what a Creative Commons license looks like in use, just flip to the front of this Toolkit! The entire Digital Readiness Toolkit is available for reuse and adaptation as long as the original is credited, also known as a Creative Commons Attribution 4.0 International License.

Takedown Policies

After doing the legwork to assess copyright and pursue permissions, you might still have some uncertainty about the rights status of some materials. The Digital Millennium Copyright Act (DMCA) of 1998 established a notice-and-takedown system, which means that if you infringe on copyright by posting copyrighted material online without permission, the rights holder has to follow a specific procedure to notify you and give you the chance to remove the copyrighted item. A good practice is to post a takedown policy on your organization’s web page or digital collections site, so that the process for submitting a takedown notice is clear to any rights holders.

A takedown policy includes:

• The procedure a rights holder can use to submit a takedown notice
• A brief outline of what your organization will do if a takedown notice is received
• Your organization’s contact information

Harmful Content Statements

A content statement is a message on your digital collection website or within your collection metadata that alerts users to materials they may find offensive, triggering, or harmful. Without mediation or interpretation, this content might be taken out of context or worse, inflict irreparable harm on unsuspecting users. The goal of a content statement is not to deter users, but to prepare them, especially younger learners and their educators, for content they might encounter.