A large part of the rights-review process for archival materials involves reading, evaluating, and/or obtaining deeds, transfer agreements, licenses, and permissions documents to ensure you can build your digital collection as intended. To ensure smooth and efficient processes, you want to have a strong understanding of what these documents are and what language your institution currently uses for them. You may even need to draft some templates or revise outdated language to better facilitate building digital collections.

Definitions

Before we share how we approached this topic, let’s define some terms.

License. A license is permission granted by an authority to do something that would otherwise be prohibited (Legal Information Institute, 2020). Often, librarians think of licenses in the context of providing access to databases and e-resources. For archival digital collections, rightsholders can grant licenses to the institution, giving the institution the ability to make a work publicly available online. Licenses can also be offered by the institution to third-party users. For example, if an institution holds copyright in a given work, it can grant others the permission to use it in a scholarly publication or documentary series.

Permissions. In the context of rights and digital collections, permissions generally means “authorization to do something” (Society of American Archivists, 2022f). To get permission usually involves obtaining a license. Often, we need permissions from a copyright holder to invoke their exclusive rights. Sometimes, we might need permission from an individual featured in an object to ensure we are not violating their right to privacy. Permissions documents can take many forms from something as simple as a short letter to a multipage, complex license form.

Deed. A deed is a legal agreement to transfer ownership of property (Society of American Archivists, 2022c). Deeds are often referred to as either a deed of gift or deed of sale depending on whether or not the agreement involved monetary compensation (Society of American Archivists, 2022d). For the purposes of building digital collections in cultural heritage institutions, a deed transfers ownership of one or several items of an entire collection of tangible and/or digital materials from a donor or a seller to a cultural heritage institution. Deeds also serve as legal contracts for any additional terms and conditions related to the transfer such as copyright and license agreements and privacy restrictions, for example.

Deeds of Gift or Sale

A deed of gift or sale^[1] is a legal contract that must be carefully composed so that no party to the contract has any questions about its meaning. The Emory deed template (see Appendix C) is extensive and complex. It was developed by our special collections staff in collaboration with an attorney in our Office of General Counsel, so it is longer and more formal than some deeds from other institutions.

Other examples of deeds can be found online:

Georgia Tech University, Library Archives and Special Collections Deed of Gift (PDF)

Rice University, Fondren Library Special Collections and Archives, Woodson Research Center Deed of Gift (online webform)

Guggenheim Museum Deed of Gift (PDF)

The Society of American Archivists has developed a practical and useful Guide to Deeds of Gift (2013) that outlines all the elements these deeds should include and explains details about each element.

Transfer of Copyright

It is important to note that even though deeds transfer the ownership of the physical or digital objects to your institution, this ownership transfer does not always include a transfer of copyright. If your institution wishes to control the copyright to the materials it will own, the transfer of copyright must be negotiated with the donor or seller (if they are the copyright holders) and explicitly spelled out in the deed, as can be seen in the examples above. It’s also important to remember that donors or sellers rarely hold copyright in every item in a given collection, and they can transfer or license only the rights they hold. For example, Emory owns a large collection of Southern Christian Leadership Conference (SCLC) records. As you can imagine, many of the documents in this collection, such as letters and other correspondence, were created by SCLC employees in a work-for-hire situation, so the SCLC owns the copyright to those documents and could transfer that copyright to Emory (which is actually not the case). However, the collection also contains correspondence written by people outside of SCLC and sent to SCLC staff, so the organization would not own copyright in those specific records and therefore could not legally transfer that copyright to Emory. Because of the complex legal nature of the deed, it is always best when possible to have your general counsel review it to ensure it aligns with the policies of your organization.

Amendments and Addenda

Many cultural heritage institutions have existed for a number of decades or even centuries, so the collecting focus of the institution may have changed several times over the years, and best practices concerning deeds of gift have likely also changed. For example, it has long been the norm for donors and sellers of cultural heritage collections not to transfer copyright in the materials to the receiving institution, but this norm is changing and often dependent on whether the copyright holder is monetizing the materials (or plans to do so in the future). In addition, the rise of the digital age over the past few decades means that cultural heritage institutions can now share their collections online as opposed to the in-person, physical exhibits that were the sole option before the early 2000s. Therefore, if you want to digitize and share collections that your institution received or bought in predigital times, you may need to renegotiate with the donor or seller because permissions for digitization and online sharing would not have been included in the original deed of gift.

It is important to take some time to assess whether you and/or your staff have the capacity to work with the collection’s copyright holders to obtain permission for digitization and online sharing of them, or possibly for the transfer of copyright. The time and labor necessary to research the numerous copyright holders in any given collection and then contact them individually for permissions may be beyond what your current staff can accommodate. If you determine that you can’t accommodate this work, it’s best to focus on public domain material or crafting fair use justifications (see also Chapter 2: Identifying Your Institutional Risk Tolerance: Practical Considerations). If you determine that you do have the capacity for this in-depth research and outreach, it is best to approach this conversation with a goal in mind. For example, if the donor/seller wants to retain their copyright, are they willing to grant a broad license to your institution for digitizing the materials and sharing them online? Or might they be willing to add a Creative Commons license to the materials to make it easier for your institution and the public to work with them? Would they be willing to dedicate the materials to the public domain or to transfer copyright in them to your institution so that you could openly license them?

Following are examples of language concerning rights that can be used in a deed of gift amendment (if you are changing the original deed) or addendum (if you are simply adding new terms and conditions to the original deed), and each example illustrates one possible outcome.

1. Seller/Donor retains IP rights and grants [institution name] a license for the [specific part of or items in the collection, e.g., photographs, diaries, correspondence, etc.] in the [name of the collection]: Seller/Donor grants to [institution name] a nonexclusive, royalty-free (i.e., no cost to [institution name]), worldwide, and perpetual license to copy, distribute (via downloadable copies and otherwise), modify for display, and display such Materials in print, digital, and online formats, now known or later developed, to the extent necessary to preserve and steward the Materials, to publicize and promote use of the Materials, and to make the Materials available for study, research, and exhibition. The foregoing license shall include the right to digitize Materials originally received in nondigital formats, as reasonably necessary for [institution name] to exercise the other rights granted in this Agreement.
2. Seller/Donor retains Seller’s/Donor’s IP rights and irrevocably licenses the [specific part of or items in the collection, e.g., photographs, diaries, correspondence, etc.] in the [name of the collection] with one of the following:
   1. A Creative Commons Attribution 4.0 International (CC BY 4.0) License. This license allows any user to reproduce, distribute, adapt (e.g., remix or transform), or make derivative versions of the original material as long as the user cites the creator of the material. This license allows for all of these uses to be commercially exploited.
   2. A Creative Commons Attribution-Noncommercial 4.0 International (CC BY-NC 4.0) License. This license allows any user to reproduce, distribute, adapt (e.g., remix or transform), or make derivative versions of the original material as long as the user cites the creator of the material. However, users cannot use the material for commercial purposes (e.g., the use cannot be “primarily intended for or directed toward commercial advantage or monetary compensation”; more information here).^[2]
3. Seller/Donor indicates an express wish to irrevocably transfer, convey, and assign to the public domain all Seller’s/Donor’s IP rights. The transfer of rights will be marked by a Creative Commons CC0 license.
4. Seller/Donor irrevocably transfers, conveys, and assigns all the Seller’s/Donor’s IP rights in the Materials to [institution name].

Challenges

Complex legalese. As noted above, deeds can often be complex and confusing for those without legal training, so it is critical that curators and archivists have broad training and a deep level of comfort with legal terms and conditions since they are most likely the ones that donors will query when they do not understand parts of a deed. Curators and archivists should be able to explain the meaning of any and all portions of their institution’s deeds, but they should take care to inform donors that they are not able to provide legal advice to them. Instead, curators and archivists should advise donors to retain legal counsel.

Finding current legal entities. When a cultural heritage institution determines that an amendment or addendum to a deed is necessary (often because they want to digitize and share materials that were donated decades ago), staff must find out who is the current legal representative of the original donor, who may no longer be alive. This person may be the heir(s) of the donor, or in the case of a corporate donor, it may be that the corporation was merged with or sold to another corporation that is the current legal entity. This investigation may be time consuming and difficult, and sometimes, finding an answer may be impossible. Staff at cultural heritage institutions should remember that these problems may arise and make contingency plans for them. For example, you could decide that it may be best to simply not digitize the collection or to consider the fairness of the use rather than to accept the risks that come with orphaned work status.

Signatory authority. Knowing who has the authority to sign a legal document on behalf of your cultural heritage institution may seem straightforward, but it can be surprisingly complex. At your institution, is it the director of the museum? The dean of the library? The director of the archives? The institution’s chief financial officer? The general counsel’s office? Be sure to have a solid understanding of who can sign the deed at your institution, and it also behooves you to know who may be able to sign a deed in the absence of the chief signatory authority.

Obtaining Permissions

Finding the Copyright Owner

Once you’ve determined that you need permission in order to add materials to your digital collection, the permissions process begins with finding the copyright owner. This involves two steps: (1) identifying the copyright owner and (2) locating the copyright owner in order to contact them. Unfortunately, neither step is universally simple or straightforward.

Identifying and Locating the Copyright Owner

The biggest hurdle in obtaining permissions is often identifying who owns the copyright in a work, locating that owner, and determining the best method for seeking their permission. A copyright owner could be an individual but could also be a commercial entity such as a publishing house, literary agency, or foundation.^[3] If you are new to this work, we recommend reviewing Chapters 3 and 8 from the openly accessible book Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums (Hirtle, Hudson, & Kenyon, 2009).

When it comes to developing your copyright workflow, make sure that you factor in the time, cost, and effort involved in permissions processes.

Crafting a Permissions Letter

Once you’ve identified your copyright owner, you’ll need to get permission. You may be able to obtain permission through a collective rights management organization, like the Copyright Clearance Center (CCC) or the Visual Artists Rights Society (see Hirtle, Hudson, & Kenyon, 2009, Chapter 8, Section 3 for more details). However, many materials in archives aren’t managed by a third party.

If you need to contact a copyright owner directly, you will want to craft a permissions letter to use in obtaining permissions. These letters can take a variety of forms and structures, but you want to be sure to answer the following questions:

• Who are you?
  • Include your name and title as well as information about the organization you are writing on behalf of.
• What are you using?
  • Be as specific as possible in describing the copyrighted work you want to use.
• How do you want to use it – both current and potential future uses?
  • You want to ensure that you have the rights you need now for creating your digital collection, but you also want your language to be flexible enough to allow for other uses if possible.
• What rights do you need to conduct that use?
  • Exclusive vs. nonexclusive
    • Do you want or need to be the only entity doing what you’re doing? If so, then you want exclusive rights. If it doesn’t matter to you whether others have the same permissions you do, then you can ask for nonexclusive permissions.
  • Perpetual
    • To avoid having to continuously re-ask for permission, make your request in perpetuity.
  • World-wide
    • Copyright law is a national law. Given that digital collections are online, you want to ensure that the rights you obtain apply in all possible jurisdictions.
  • Royalty-free
    • You want to make clear that your permission request does not have a financial incentive for the copyright owner.

In crafting your letter, there are a few additional items to take into consideration. First, are you certain that the person you are contacting is the copyright holder? Or do you suspect it? If you only suspect it, you may want to include language that gives the recipient the opportunity to state that they are not the rightsholder and to direct you to the appropriate entity if possible. Second, you want to consider your form. If the rightsholder is a professional creator, a more formal license structure with legalese may be appropriate. However, if the rightsholder is a community activist, a personal letter structure with more human-readable language might be preferable. Finally, be prepared for an alternative. Sometimes, rightsholders have their own permissions form or template prepared and require all inquiries to be made using that document. Make note in your workflow how you might prepare for this type of permissions interaction, especially if the rights granted are more restrictive than what you need.

At this stage you are ready to move forward with contacting rightsholders to get permission. One item to clarify in your workflow before you do: What level of permissions assent is enough? Ideally, you want the rights owner to send you back a copy of your letter with a physical signature. However, given technology or time constraints or the cost of postage, that might not be feasible for every rights owner. Before you begin, confirm what level of assent is sufficient for your institution. Is it acceptable to just get an email response? If so, are there any conditions to confirm? Can you accept PDFs with Adobe e-signatures? Can you use DocuSign or another e-signature software to get assent? These questions all point to a risk determination. For more information on assessing risk, see Chapter 2: Identifying Your Institutional Risk Tolerance.

Negotiation

Requesting permission may not always be successful at first because rightsholders are sometimes not comfortable with how you plan to use their copyrighted material(s) or would like to be compensated for their use. If or when a rightsholder denies permission, it’s important to remember that negotiation is possible. Let’s explore this idea with an example. Your cultural heritage institution holds a collection of works by a famous art photographer, and you want to digitize and make available online several of her most famous photos as part of an exhibit of art photographs your institution holds in its collections. You have crafted an excellent permissions request letter by following all the guidelines above. In the letter, you ask to digitize the photos and share them in this exhibit and other similar exhibits in perpetuity. You explain that the exhibit will feature the photos in a high-resolution, large format that can be downloaded, and you state that your institution is experiencing a tight budget, so you are unable to pay a licensing fee. You send the letter off with high hopes and begin to plan your online exhibit. However, the response to your letter is an unqualified denial of permission because the rightsholder is still monetizing these images through a licensing market. At this point, you have several options – you can offer to do one or more of the following:

• Display the images in a smaller, lower resolution format;
• Disallow downloading of the images;
• Ask for time-limited permissions rather than perpetual ones;
• Select different images for the exhibit.

You can also negotiate on the monetary side by offering to pay for the license, perhaps asking for a slight or even substantial discount because of the collegial relationship you have with the rightsholder. The important point here is to persist (in a professional manner, of course) with various offers and counteroffers to discover whether you and the rightsholder can come to a mutually satisfactory agreement.

Record Keeping

The permissions process for creating digital collections can be somewhat cumbersome. It is important to create an organizational system to help you track each step of the process from when and how you identified the rightsholder to when you received a response from them. A simple spreadsheet can tackle this work. For a good example, see Susan Bielstein’s Permissions, a Survival Guide: Blunt Talk about Art as Intellectual Property (2006).

When permissions letters and forms are received, you may also want to use a checklist to ensure that the rights you asked for are the rights you obtained. Rightsholders can strike clauses from letters and in the event they insist you use their standard permissions form language, you need to confirm that the permission granted will allow for your use. Including a brief letter review into your workflow will save significant headaches down the road.

Planning with Permissions in Mind

For the purposes of developing a copyright workflow, it is important to take into consideration a few of the following factors:

• Time
  • The permissions process can be a long one. The law does not require responses from copyright owners you asked for permission. Treat a nonresponse as “no.” In creating a copyright workflow for your institution, consider how you can build in enough time to negotiate and obtain permissions without rendering a project permanently on hold. Identify the timeline that you feel gives the copyright owner a reasonable period to respond and develop a backup plan (see the third bullet below) for when a rightsholder doesn’t respond or denies your request.
  • You can save time for both you and the rightsholder by consolidating your permissions requests. Rather than getting permissions piecemeal, item-by-item or collection-by-collection, try to anticipate and obtain permissions across your archives. Do you have several collections that are interrelated, but only one is scoped for ingest into your digital collection? If a copyright owner’s work crosses over multiple collections, try to get permission for all those materials at one time.
• Relationships
  • The permissions process is a collaboration between you and the copyright owner. It is often an opportunity to initiate broader discussions. You may ask for permission to digitize one letter and end up acquiring a whole new collection. In developing your workflow, consider how you will handle serendipitous offers from copyright owners.
• Backup plans
  • Assume that you will not be successful in obtaining permissions at least some of the time. Incorporate into your workflow what you will do when this happens. Will you consider fair use (and your institution’s policy regarding fair use for digital collections)? Will you exclude certain materials from a digital collection, or will you exclude a whole collection from digitization?

Exercise: Reviewing Your Legal Documents or Writing a Permissions Template

Instructions: Review the deed of gift or sale for a collection you want to digitize. Determine if the deed covers the permissions you might need to create your collection. If not, write a permissions letter to get permission from the copyright owners identified in that collection.