The esteemed Association of Art Museum Directors (“AAMD”) recently published its Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums (the “Guidelines”) on June 1, 2016.

As set forth in the Introduction of the Guidelines, nearly all aspects of museum operations, from the display of works of art (i.e., works of the visual arts in any media subject to copyright in the United States) to the dissemination of archival material, from the creation of exhibition catalogues to the use of online collections, are encompassed by the possession, ownership and use of copyrighted materials and works of art in art museums.

While art museums must be mindful of the rights of creators of, and copyright holders in, materials and works of art, museums rely on the right to use copyrighted materials and works of art in appropriate instances and under conditions that are well recognized. Of course, not only do museums use copyrighted materials and works of art, but they also create such materials and commission such works. Museums should (and the AAMD believes they do) understand and expect their copyrighted materials and works of art to be subject to the same fair use by third parties.

In today’s constantly changing technological world and legal landscape, the AAMD recognizes that art museums seek guidance as to how they can fulfill their missions of acquiring, preserving, studying and interpreting works of art held for public benefit, while respecting the rights of authors, artists and copyright holders. The AAMD believes that any such guidance should “acknowledge the right to use copyrighted materials and works of art without undue restriction or limitation, so long as such uses are legally and ethically sound.”

The Guidelines fulfill a need to “inform the field about appropriate and normative practices in the use of copyrighted materials and works of art and the application of fair use in the context of various museum activities.” The AAMD encourages each museum to develop its own written policy and procedures regarding the use of copyrighted materials and works of art as the Guidelines are intended to only generally inform and assist member museums.

Following the Introduction, the Guidelines begin with a discussion of “fair use” under the United States copyright laws, introduce “special considerations” (i.e., attribution, partial images, website terms of use, contract limitations, and courtesy clearance) that are related to the legal test for fair use and should be considered when museums are using copyrighted materials and works of art, and lastly include “specific examples” that address various museum activities for guidance in the fair use analysis, such as online collections, publications (e.g., exhibition catalogues, scholarly articles, blogs, educational materials, collection handbooks, museum brochures, and other). The Guidelines include an Annex at the end of the document on fair use and an analysis of the four factors to be considered when determining whether the use of copyrighted materials and works of art is fair use under the United States copyright laws.

To review the Guidelines in their entirety, see Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums published online by the AAMD.