Back in July of 2010 I reported on the lawsuits brought by the photographer Anne Pearse-Hocker against the National Museum of the American Indian, for making copies of her copyrighted photographs, and against Firelight Media, which used the photographs in its documentary film about Wounded Knee. I noted that it was one of the rare lawsuits against a cultural heritage institution and ended by noting that “This case should be interesting to follow – if it is not settled out of court.”
Thanks to the wonderful people at Justia, it has been possible to follow the court filings in the case. And as I suspected, both cases settled before proceeding to trial. Still, there is plenty of interesting hints in the documents about how the story played out.
The case of Pearse-Hocker v. Firelight Media, Inc. settled first, on 14 October 2010. The “Stipulation of Dismissal” says nothing about the terms, merely that each side is responsible for its own legal fees. An earlier document, though, suggests that the parties had “reached agreement as to the monetary term of settlement.” One would love to know whether the amount of settlement was symbolic or substantial.
In its initial answer to the complaint, Firelight admitted that
…the photograph numbered N44622 is shown at approximately minute 63 of the film for a duration of approximately seven seconds, that the photograph numbered N44926 is shown at approximately minute 64 of the film for a duration of approximately 16 seconds, and that the photograph numbered N45215 is show at approximately minute 65 of the film for a duration of approximately 7 seconds.
But it also asserted among its defenses that this use was a fair use. Whether the “Documentary Filmmaker’s Statement of Best Practices in Fair Use” would agree or not is open to discussion. In any event, Firelight Media now acknowledges on the movie’s web site that three uncredited photos by Anne Pearse-Hocker appear in the film.
The judgment in the other case, Pearse-Hocker v. United States, which was entered in June, 2011, is more informative. The museum (which as part of the Smithsonian is a unit of the US government – hence “United States” as the defendant) agreed to pay Pearse-Hocker $40,000. In addition, they had to provide her with a digital copy of the 15 photo contact sheets in the collection, from which she could select 100 images to be provided to her at high-resolution. This would normally cost an additional $7,500. Finally, the director of the museum, Kevin Glover, had to send Pearse-Hocker a letter acknowledging her generosity in donating the photos to the museum. The museum did not have to return the collection of photos to Pearse-Hocker, however, which was one of the demands in her original complaint.
The museum did not admit that it had violated any laws or contracts, but it is hard to determine what defense it might have used if the case had proceeded to trial. Its pro forma response to the initial complaint hinted that it would have argued that Firelight Media’s use was a fair use and that it had a license from Pearse-Hocker to copy the material for Firelight.
What lessons can a cultural heritage repository take away from this case? First and foremost, it emphasizes the need to respect and follow the terms in a deed of gift. Sometimes deeds require practices and procedures that are outside of the ordinary, but that just means that our workflows have to be such that anomalous items are consistently identified.
Second, we should make sure that the terms in the deed are as clear as possible. Pearse-Hocker’s Deed of Gift (Exhibit B of the original complaint) states “I hereby also assign and transfer all copyright that I possess to the National Museum of the American Indian, subject only to the conditions which may be specified below.” What conditions were specified below? “I do not, by this gift, transfer copyright in the photographs to the Smithsonian Institution”! Why have a deed with two conflicting sections in it?
In addition, the deed granted to the museum “an irrevocable, non-exclusive, royalty-free, license to use, reproduce, display, and publish, in all media, including electronic media and on-line, the photographs for all standard, educational, museum, and archival purposes.” Many would argue that providing copies for non-profit documentaries on PBS is part of the standard educational mission of the museum. Yet this interpretation could be in conflict with the next sentence of the deed, which states that “requests by people or entities outside the Smithsonian to reproduce or publish the photographs shall be directed to the donor.” If the Smithsonian felt that only for-profit uses should be referred to the donor, it should have made this clear in the deed.
Third, this case reminds us that running a repository involves taking risks. We run the risk that users might steal collection material or that dirty documents caked in lead dust or mold might injure staff or patrons. We particularly run risks when we duplicate materials for patrons. It is an essential part of our service, but one that needs to be managed by knowledgeable practice and procedures. One wonders, for example, if the museum may have weakened its own defenses by charging a permission fee that is separate from the cost of making the reproduction. Such fees are designed to generate money for the museum, pure and simple. They are unconnected to “standard, educational, museum, and archival purposes,” and hence could not be supported by even the most generous reading of the license grant in the contract. Could the desire to secure $150 in permission fees have cost the museum almost $50,000 in damages?
Lastly, I would reiterate the point I made in my original post. Since the case against Firelight Media did not get very far, we do not know what its fair use defense might have looked like. I continue to suspect, however, that Firelight, like most of our users, did not really understand the difference between the permission given by the repository and the permission it needed from the copyright owner. And it may not have understood that both were needed for its use of the photographs. The museum's invoice stated that “[p]ermission is granted for the use of the following imagery, worldwide, all media rights for the life of the project.” By providing only one of the permissions that users need, we may in the end be misleading them.
As with most lawsuits, I suspect that this was a bad experience for everyone except the lawyers. Pearse-Hocker will be lucky if her $40,000 cash payment covers her legal fees in the case. The museum is out that same amount of money, as well as its time and expense in defending itself. Most of all, therefore, this case reminds us about the importance of working with donors so that a disagreement never reaches this stage.