museum law tools & strategies: capacitizing yourself as a professional

Museum Law Tools & Strategies: Capacitizing

Yourself as a Professional

©Jon R. CavicchiProfessor & IP Librarian

Franklin Pierce IP Center at UNH Law

Think about what’s inside the box , then think outside the box

Most fun area of law to practice research skills

• Content is distributed globally• Spectrum of from information overload

to no legal authorities at your disposal• Resort to Berring “Commando Legal

Research Rules– Use a Human Being– Any Port in a Storm

• Often have to back into museum law research through news

Plain meaning rule

What is the scope of museum law?• I. What Is a Museum? • II. Museums Are Accountable to Whom? • III. Collection Management Policies • IV. The Acquisition of Objects : Accessioning • V. The Disposal of Objects : Deaccessioning • VI. Loans : Incoming and Outgoing • VII. Unclaimed Loans • VIII. International Loans • IX. Objects Left in the Temporary Custody of the Museum • X. Objects Found in the Collections • XI. Promised Gifts • XII. Tax Considerations Relevant to Gifts • XIII. Appraisals and Authentications • XIV. Care of Collections • XV. Insurance • XVI. Access to the Collections • XVII. Visitor and Employee Safety as It Relates to Collections.

• App. A. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, Adopted by the General Conference, UNESCO, at Its Sixteenth Session, Paris, November 14, 1970

• App. B. Title III of Public Law 97-446: Convention on Cultural Property Implementation Act codified at 19 U.S.C. § 2601 et seq

• App. C. Curation of Federally Owned and Administered Archaeological Collections

• App. D. 22 U.S.C. §2459: Immunity from Seizure Statute • App. E. Public Law 94-158: Arts and Artifacts Indemnity Act, as

Amended codified at 20 U.S.C. § 971

• 16 U.S.C. secs. 461 to 470aaa-11 (includes the Archaeological Resources Protection Act)These sections of Title 16 ("Conservation") concern the preservation and protection of important historic sites, buildings, objects, and antiquities.

• Convention on Cultural Property Implementation Act, Pub. L. No. 97-446, secs. 301-15, 96 Stat. 2329, 2350-63 (1983) (codified at 19 U.S.C. secs. 2601-2613)This act implements the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property and authorizes the President to enter into bilateral agreements with party nations to prevent the import of certain "archaeological or ethnological material."

• National Stolen Property Act, 18 U.S.C. secs. 2314-15This act prohibits, among other things, the knowing transportation or sale of stolen or fraudulently obtained merchandise (e.g., a work of art) worth $5,000 or more.

• Abandoned Shipwreck Act of 1987, Pub. L. No. 100-298, 102 Stat. 432 (1988) (codified at 43 U.S.C. secs. 2101-2106)This act applies to abandoned shipwrecks in submerged state lands. It abrogates the law of finds and salvage; the United States takes title to these shipwrecks and then ownership is transferred to the state where the shipwreck is located.

• 18 U.S.C. sec. 668Prohibits the theft of major works of art and cultural objects from museums in the United States.

• 19 U.S.C. secs. 2091-2095Prohibits the importation of certain stone carvings and wall art that is the "product of a pre-Columbian Indian culture of Mexico, Central America, South America, or the Caribbean Islands."

• Native American Graves Protection and Repatriation Act, Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified at 25 U.S.C. secs. 3001-13, 18 U.S.C. sec. 1170)This act protects Native American burial sites by prohibiting unauthorized excavation and trafficking in certain items, such as human remains and funerary objects. It also establishes a system for the repatriation of items removed prior to the effective date of the act.

22 U.S.C. sec. 2459Protects certain works of art and "other objects of cultural significance" imported into the United States for temporary exhibition at a museum or similar institution from seizure under judicial process.

• Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. secs. 101-805)Works of art are protected by U.S. copyright law. Provisions of this act apply to the creation, ownership, reproduction, and dissemination of works of art.

Dedicated museum & art law sources

Dedicated museum & art law sources

IP sources covering crimes

IP sources covering crimes

Criminal Law sources covering

art, IP crimes

Criminal Law sources covering

art, IP crimes

Internet, cyberlaw, computer law sources covering IP crimes

Internet, cyberlaw, computer law sources covering IP crimes

General legal materials with sources on art &

museum law & crimes

General legal materials with sources on art &

museum law & crimes

Non-legal sources covering art, IP

crime

Non-legal sources covering art, IP

crimeTreaties & International Agreements

Treaties & International Agreements

Cultural and moral rights sources

Cultural and moral rights sources

Domestic & foreign, international

primary & secondary sources

Domestic & foreign, international

primary & secondary sources

Dedicated licensing sources

covering art & museum

Dedicated licensing sources

covering art & museum

Non-profit tools Non-profit tools General &

dedicated sources on taxation

General & dedicated sources

on taxation

General & dedicated

personal injury & insurance

sources

General & dedicated

personal injury & insurance

sources

Domestic & International Human Rights?

• TITLE 10. ARMED FORCES• TITLE 14. COAST GUARD• TITLE 16. CONSERVATION• TITLE 18. CRIMES AND CRIMINAL PROCEDURE• TITLE 19. CUSTOMS DUTIES • TITLE 20. EDUCATION• TITLE 36. PATRIOTIC AND NATIONAL OBSERVANCES, CEREMONIES, AND

ORGANIZATIONS • TITLE 40. PUBLIC BUILDINGS, PROPERTY, AND WORKS• TITLE 42. THE PUBLIC HEALTH AND WELFARE • TITLE 51. NATIONAL AND COMMERCIAL SPACE PROGRAMS

Museums & Litigation : “Cases”

• Over 1000 reported appellate cases with a museum as a named party

• No controlled way (e.g. West Topic to sort them)• No topical area/tab but consider MyWestlaw & other

customization options as well as WestlawNext• Use your case research skills

– West Key Number 315T Public Amusement and Entertainment

• Over 2000 museums named parties in Court Dockets• Nature of action field shows topics of litigation

• Thousands of news stories report legal activity in museum law space

• ti(museum) & ti(legal litigation lawsuit sue* court)

Museums : • Title 2. Grants and Agreements : Institute of Museum and Library Services• Title 5. Administrative Personnel : Institute of Museum and Library Services• Title 8. Aliens and Nationality : Evidence of the display of the alien's work in the field

at artistic exhibitions or showcases• Title 9. Animals and Animal Products : Bones, horns, and hoofs for trophies or

museums; disinfected hoofs.• Title 26. Internal Revenue: Exemption for sale to or use by certain aircraft museums.• Title 34. Education : Institute of Museum Services• Title 36. Parks, Forests, and Public Property : When are the Presidential library

museums open to the public?• Title 43. Public Lands: Interior : Human Remains, Funerary Objects, Sacred Objects,

or Objects of Cultural Patrimony in Museums and Federal Collections Summaries.• Title 45. Public Welfare : Museum eligibility and burden of proof--Who may apply for

Grants.– 45 C.F.R. PART 1160—INDEMNITIES UNDER THE ARTS AND ARTIFACTS INDEMNITY ACT

600+ 600+

So what type of project are you working on?

• Legal Research– Transactional– Litigation

• How to / training materials• Client awareness and education• Public Policy• News• Statistics• Public relations• Fundraising

Secondary Sources• People • Treatises• Continuing Legal Education• Journal Literature• Grey Literature• Databases

– Legal and non legal• News sources• Social media

– Blogs– Twitter– Linked In

Treatises

Pleading & Practice : Forms

• Legal form sets print & online• Practice sets print & online• Treatises have lots of forms• Web

Continuing Legal Education

Journal LiteratureNo dedicated law reviews

No dedicated law reviews

Plenty of “Arts” Law Reviews

• Consider to what extent “arts” is enmeshed with entertainment law reviews

• Cardozo Arts and Entertainment Law Journal• Columbia Journal of Law & the Arts• DePaul-LCA Journal of Art and Entertainment

Law• Florida Entertainment, Art and Sport Law

Journal• Washington Journal of Law, Technology & Arts

Grey Literature• Gray literature is a field in library and information

science. • Used variably by intellectual community, librarians,

and research professionals to refer to a body of materials that cannot be found easily through conventional channels such as publishers

• but which is frequently original and usually recent• Debachere, M. C. (1995). "Problems in obtaining grey literature". IFL4 Journal 21 (2): 94–98.

doi:10.1177/034003529502100205

Web Based Research Platforms• Lexis

– Use Find a Source to discover content in any database• Westlaw

– Use IDEN to discover content in any database• Hein Online• Foreign & International Law Products• Non legal

– JSTOR– EBSCO– SSRN

New Sources

Social Media

• Blogs– Peter J. Caruso II, a partner in Prince Lobel’s

Intellectual Property and Media Practice Groups, has launched a new museum law blog. The Museum Law Blog is a resource for curators, directors, trustees, donors, archivists, and museum patrons to stay on top of current trends in Museum Law

– http://museumlaw.wordpress.com/

Blog by Elizabeth Merritt, founding director of the Center for the Future of Museums, an initiative of the American Association of

Museums.

Association of Museum’s (AAM) Code of Ethics supports this view, asserting thatAs nonprofit institutions, museums comply with applicable local, state, and federal laws and international conventions, as well as with the specific legal standards governing trust responsibilities. This Code of Ethics for Museums takes that compliance as given. But legal standards are a minimum. Museums and those responsible for them must do more than avoid legal liability, they must take affirmative steps to maintain their integrity so as to warrant public confidence. They must act not only legally but also ethically.

LinkedIn

• Crowdsourcing• Follow strategy

avoids “noise”• News of all

types• Content links• Connections to

experts• Search Twitter

including Google

Twitter

U.S. Government

GAO found that almost 20 years after NAGPRA was enacted, eight key federal agencies with significant historical collections--Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service and National Park Service; Agriculture's U.S. Forest Service; the U.S. Army Corps of Engineers; and the Tennessee Valley Authority--have not fully complied with the requirements of the act.

International

Foreign Laws : each unique

Martindale-Hubbell Law Digest – English-language summaries of the laws of 80 countries, including a digest of European Union Law.

Professional Organizations : “NGOs”

Prospecting using law directories

• 28 lawyers in museum law category• 90 museums listed as representative clients• Over 1500 lawyers list their affiliations with

museums (e.g. Board members)

Law Schools

Some Museum Law Practice Groups

Museum lawyers

Emerging issues

• Herbarium Collections– Smithsonian Collection

• Ownership under CBD