Unrepatriatable presentation

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Unrepatriatable: Native American Intellectual Property and Museum Digital Publication

Lessons in Bronze

IP: Learn to love it because it rules your life

© 2008 Nina Paley

As I continue to work on my master's project many people have asked me how I became interested in intellectual property. I thought I'd share the source that originally piqued my interest because it's 10:45pm and I would rather write a blog post then work on my master's project. Obviously 10pm on a Saturday night is the poor decision making hour, regardless of what you are doing.

A few years ago Netflix was a new thing. Somehow or another I stumbled across a movie called "Sita Sings the Blues." Yadda yadda yadda, DVD shows up and I watch the movie and it's good. For whatever reason (boredom and extreme lack of friends/social engagements) I was watching the DVD extras which I never do unless they're bloopers (remedial sense of humor). The creator of the movie, Nina Paley, had some really interesting things to say about the soundtrack for the movie. Copyright law, protection terms, and licensing all played heavily into the use of the songs and  her and influenced decision to license the work for free under a creative commons license.

I won't reproduce everything she said, you can read about it here. I can't really explain why I found the topic so interesting other than it was complicated and thought provoking.

For example (taken from FAQs page):

"Q: Why would corporations hang onto all these old copyrights if they are going to make it so hard to use them?

A: Well, there's a good answer to that. The corporations that hold these copyrights are media companies that also control most of the new media that comes out. Estimates vary, but it's said that 98 percent of all culture is unavailable right now because of copyrights. So the reason they hold the copyrights isn't because they want to get paid, it's because they don't want all the old stuff competing with the media stream that they control now."

While that is certainly one perspective to have, the flip side is copyright enables artists to earn a living as an artist. If artists (singers, painters, dancers/choreographers, etc.) can't realize any economic benefits from their creative output then their ability to earning a living is hindered, and creativity is diminished. It is precisely because artists are afforded protection under copyright law that they can share their work with others without fear of someone ripping them off. 

Now, are big media conglomerates holding copyrights tightly in their big green hulk-like fists? No, probably not. They're monetizing their investments. That would kind of be like saying why wont Apple just give me an iPhone for free because I want it and they want me to want it. Well Johnny, they don't just give you their product for free because that's called business. 

Nina's comment about competing media streams is slightly misinformed. Sound recordings have compulsory licences that allow people to produce copies of published works for private sale (sale to individuals and not as soundtracks) with or without permission from the copyright holder blah blah blah. Do you own research. My point is copyright law is an implicit license for people to USE material, it does not give copyright holders ultimate control over works into oblivion. It sets the terms of use, operative word there is USE. Copyright law is all about striking a balance between the investment of the creator and the interests of the public. Does either side win everything all the time? Nope. That, Johnny, is called a compromise. 

Anyways you can and should watch the movie Sita Sings the Blues, for free here. 

And that's why I think intellectual property law is neat. What can museums learn from this story? I donno. You tell me.

© 2014 Patricia Lord

Fear Mongering: NAGPRA II

Bet that headline caught your attention!

Here's a scary thought; what if museums had to give back all the information they have released regarding Native American culture? You're thinking "But that's impossible! It's already been released, how will I track it down? How will I get all of it? I don't know where it is!"

And that is gossip.

Kidding, but if you get that reference I like you.

Now what if instead of gathering up all those feathers you had to pay Native Americans artists for every instance of infringement perpetrated by museums?

How about if I said that Native Americans may be able to own copyright in their traditional works.

Are you feeling nervous yet?

What if you had to ask a Native artists permission every time you wanted publish an image of an object they created? What if permission had to be granted anytime a third party asked to publish an image of a Native object in your collection?

Feel yourself getting agitated?

What if you had to share any profits you made from selling copies of old sound recordings of Native American singers preforming traditional songs?

What if owning a traditional object does not mean you own the copyrights? What if age is not the sole determining factor in term protection limitation?

What if a Native artist could revoke their copyright transfer decades after the transfer was made?

What if publishing information that actively harms the spiritual, emotional, economic, and cultural health of a Native tribe is not considered 'fair use'?

Scared yet? Well you should be. Why? Because all of these things are actually already laws that govern the use and ownership of intellectual property.

WHAT!?

Yes, that's right. Shockingly, museums have been misapplying intellectual property laws to Native works for almost a century.

Now, since intellectual property law is a complex and beautifully frustrating beast understanding how these laws apply to traditional works created by Native artists is difficult. I could explain it to you but I don't want to. Do your own research.

All I am simply saying is that museums have been either intentionally or unintentionally depriving Native Americans of their intellectual property rights and economic interests for about a century. This is inline with our other efforts of physical property deprivation, and privacy deprivation, and general respect deprivation. Good for us for being consistent in our subjugation of Native peoples.

Now what if I told you there are already articles being drafted that would provide greater protection for indigenous groups internationally?

If you're interested in learning more you'll have to buy the book. Coming this June. (The book is my Master's Project).

So how do you feel about your ability to apply intellectual property law to Native American material?

"I have doubts."

© 2014 Patricia Lord

Seattle Seahawks and Museum Mistakes

 

Trademark? No. The Washington Redskins lost their trademark protection for the Redskins logo. 

Football, the Washington Redskins, and Museums.

These three things all share one common trait. Can you guess what it is? That's right! They all suck.

For a few years now the Oneida Nation, as well as several other Native American organizations and their supporters have been calling for the Washington Redskins to change the name and mascot of their team. I wont get into the details of that specific battle but you can read about it here.

Now, for the purposes of this blog post I am going to assume that you are not a buffoon and that you comprehend why naming your team "The Redskins" is offensive. So we all agree the Redskins name sucks.

Things that suck:

Redskins
Football
Museums

Now, since we've established that we all agree the Washington Redskins are terrible, we need to discuss why American football sucks. Psych, no we don't. We all know football is the most overrated, boring, terrible sport to ever exist.

Let's revisit our list.

Things that suck:

Redskins
Football

Museums

Okay, so why would I, a museum professional, say museums suck? I could list about 100 things off the top of my head, but I only need to list one. This one. For those of you who are too lazy to read, the Seattle Art Museum and the Denver Art Museum wagered works of art for the Super Pooper Bowl - the losing museum would have to loan their work to the winner, presumably for the winning city to be able to mock in person. How droll. So what did the Seattle Art Museum (SAM) choose as their little art poker chip? A sacred mask from the Nuxalk Nation? Featuring the same kinds of designs that the Seahawks RIPPED OFF to create their team logo!!!?? And they did so without consulting the tribe first??!! BRILLIANT! Just stupendous. Solid bunch of professionals they have up there in Seattle.

I cannot even fathom why the SAM thought that was a bright idea. Whoever approved it was probably a football fan.

I'll make my point quickly - which I can do because it's pretty simple and kind of one of the most important things to know if you want to work in museums. As museum professionals we care for cultural objects, many are from cultures that are not our own. We have an obligation to ensure that we treat those objects with due respect. I'm still embarking on the horrible, frustrating, disheartening voyage that will be my career in museums but even I, a mere graduate student could have caught that. Its 2014 and there are an overwhelming number of graduate programs for museum studies and we still can't figure out that betting a sacred First Nations object on a football game is a bad idea?

Be proud SAM, you earned this check mark for us all.

Things that suck:

Redskins
Football
Museums

I could go on forever on how blatantly stupid an idea that was but it looks like the Nuxalk Nation put the SAM in its place. This leads me to my second point, and the topic of my graduate thesis big girl paper: Native American intellectual property in museums. Are museums doing enough to acknowledge and protect Native American intellectual property that we hold in museums? Spoiler alert! We aren't! And the SAM boo boo just proves my point even more. I'll be sure to post the paper in full once it's complete for the no one who reads my blog to see. Until then watch this video and visit Change the Mascot.

© 2014 Patricia Lord

Detroit Institute of Arts and the debate over monetizing collections

Photo  Maia C

We've all been hearing about the saga over the Detroit Institute of Arts (DIA) collection and the fine mess the city of Detroit is struggling to claw its way out of. When I originally chose the DIA as the topic for this blog post I struggled to find something meaningful to say about it. It’s been well covered by the media and most people seem to understand that it sucks that the museum and the people of Detroit might lose the collection. I thought perhaps I might talk a little bit about the debate over monetizing vs. not monetizing the collection and provide some insight for non-museum folks who might not be aware of the pros and cons of the arguments. But then I was like, blah, that’s boring and again, it’s pretty straight forward, and most journalists have touched upon the basics of the topic already in their general discussion of the story. I was about ready to give up and move on to another topic, when all of a sudden, in the middle of the night, the answer came to me as I lay in that mystical space between wake and sleep. So prepare to be astounded with my genius plan to save the DIA and museums everywhere from financial ruin. And no, that’s not a lofty statement – just wait until you read my solution.

First, a brief background:

There is a debate within the museum world whether or not monetizing a collection is good or bad. Most museum professionals say bad, most business-minded people say good. Monetizing the collection essentially means setting a value and listing it as an asset on the statement of financial position (this is what a balance sheet is called when the organization is a nonprofit). Now, museum professionals are uptight about monetizing the collection because, if we are truly abiding by the real intent of our professional code of ethics and the museum’s mission, then collections accessioned (formally added) into the permanent collection are not purchased with the intent to resell. This means they are not acquired as investments but as permanent additions to the collections and the assumption is that they will remain with the museum for the foreseeable future. So essentially from this perspective the collections do not represent assets because there is no intent to sell, ever, and non-cash assets are all about monetary conversion (liquidity). Now, as a side note because this may give people the wrong impression I want to clear some things up. Museums do sell collections objects and they do know their collections are worth money. It’s not like if someone asked how much that da Vinci is worth we’d be like “Oh I donno, money is so passé.” We do insure our collections and that involves appraising the collection as a whole and in certain cases individually, but those figures are used for insurance and other internal purposes only. We do sell collections pieces but only after the piece is considered no longer appropriate for the collection and deaccessioned. Proceeds from those sales are strictly regulated and cannot be used for general operating expenses or to cover debts.

On the other side of the argument are people who say that collections should be monetized because it more accurately represents the worth of the museum and its ability to cover all its debts, it increases the museum’s ability secure loans, and it enables some ROI calculations for collections. You know business type things that museums are mostly bad at.

So now you’re wondering what my opinion is, to monetize or not to monetize. Well I am of the opinion that museums should list their collections on their statements of financial position. Crazy right? I’m a museum professional, have I no ethics? Did all those business classes warp me? Well let me explain, I do think that collections should be listed on the statement of financial position, however, I think they should be listed as liabilities rather than assets. BLAM! Right out of left field – didn't see that coming, did you? I am sure everyone is wondering what I am talking about, since obviously a painting worth $1 million dollars is clearly an asset – I mean it’s worth $1 million. A museum owns it, they sell it and they get $1 million. Asset. Well yes, if you ask any accountant they will clearly label collections as non-cash assets. But if we view collections the way a museum professional would, collections are actually liabilities. Why?

1. Collections are forever

As I previously mentioned, when a museum accessions an object into their permanent collection it is intended to be a part of the collection into perpetuity. This means that the museum is responsible for providing a level of care for that object that protects it from theft, damage, destruction, decay etc. This is considered the duty of the museum, to provide adequate care for object that they hold in the public trust. As you can imagine, this isn't cheap.

YOU: Don’t museums make money by exhibiting their collections?

ME: Yes.

YOU: Isn't it enough to cover the expenses of preserving the collection?

ME: No.

Collections are an obligation, like a loan. Unlike other assets that may cost money to maintain, like buildings, the collections cannot, if we’re being A+ professionals and museums, be sold. So if there is no potential or ability to sell an object for unrestricted financial gain, and the care of that object is a large financial burden that cannot be shirked, then that is a liability, not an asset.

2. Collections are heavy

So, I hope I communicated how expensive collections are for museums to maintain. Logically it follows that the larger and higher value the collection, the more expensive it is to maintain. Now of course not every museum has state of the art, climate controlled, fireproof, and burglar-alarmed storage. However, if the museum owns high value objects then their collections storage space will be commensurate with that value. Well, ideally. So if a museum curates a collection then there is an assumption of ongoing commitment for the adequate care of the collection. Since the care of that collection is proportional to the collection’s overall value and the museum can never convert the collection to unrestricted cash, shouldn't that commitment be accounted for somewhere in the financial records for the institution? Because it’s a pretty big investment. Listing the cost of collections on financial reporting documents would give a much better picture of the actual, long-term, financial position of the institution then if collections were completely absent, like they are now. Additionally it would ensure that museums give more thought to the size of their collections in relation to their financial capabilities. Can a museum with an operating budget of $500,000 properly care for a collection of over 2 million objects valued at $45 billion dollars???? No, but you’d be surprised at how many institutions think they can. Museums need a reality check, we cannot curate everything, both literally and financially. Museums need to be more intentional and responsible when accessioning objects because those object represent large, long-term liabilities therefore need to use our resources more wisely. Listing collections as liabilities is a way for museums and the public see the overall health of the organization in very real terms.

3. Collections are museums

Last time I checked, curating collections were a pretty important part of being a museum. So why, if collections are so central to the museum, are they mostly invisible on our financial statements? The cost of maintaining collections gets lumped in with general operating and building expenses even though the ongoing care of collections is one of the biggest reasons museums are granted non-profit status. Furthermore why doesn't the public, in whose name we curate and care for collections, deserve to know how much we are spending to maintain those collections? Nonprofits are required to disclose the highest earning staff members at their institution but not how much they spend on collections care. Really? Zoos, aquariums, etc. list how much they spend on food and healthcare for their living collections so why shouldn't we disclose the cost of keeping our object based collections? I am sure people would care if they saw a museum spent $600 caring for their $82 million dollar collection because that wouldn't really be proper care, would it? The converse is also true; $440,500 on a $7,500 collection might be a bit high. Why shouldn't museums be more transparent about their collections costs? We need to be better accountants for our activities.

So I hope I've made my argument and reasons clear; collections are long-term liabilities and let’s account for them in a way that recognizes their value and our obligation for their care. Now I’m sure that some accountants will be able to cite some specific reasons why this would never work, because accounting has rules and is one of the top 10 most real professions. All I have to say to that is, if the rules don’t allow us to be more transparent, more accurately reflect the role of collections in museums, and give a more accurate view of the financial health of the organization then those rules don’t work. The rules should fit our needs and not the other way around. Perhaps the lack of accounting for collections is one of the reasons why museums are so often struggling to make ends meet.  Museums need a mechanism for accounting for collections that is in alignment with our professional responsibilities and not some jerry-rigged version of a balance sheet.

In conclusion I have solved another one of museums’ biggest challenges. Looks like my MBA did pay off! Oh no wait, I will never be able to pay that student loan off.

© 2013 Patricia Lord