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Diligent Detective Work 1: The Bethlem Copyright Mystery

11 September 2014

It was about 10 o’clock in the morning, mid June, with the sun shining and a look of soft damp dew in the green of the hospital grounds.  I was wearing slightly crumpled trousers and a blue top with trainers and black wool socks.  I was clean, relaxed, inquisitive, and I didn’t care who knew it.  I was everything the well-dressed voluntary copyright detective ought to be. 

For those of you unfamiliar with Raymond Chandler, this is of course a nod to the opening of ‘The Big Sleep’.  Although I am hardly the ‘hardboiled’ detective of his books, I could not resist comparing my arrival at Bethlem Museum of the Mind to conduct a review of the copyright permissions on art works in the collection to detective work.  And, let’s face it, Raymond Chandler’s opening is dramatic.  If we carry on in that vein.... (The back cupboard of the Bethlem Museum of the Mind was full of boxes...) things get a little more prosaic so forgive me reverting to a simpler style.

With the ‘Big Move’ to the new building looming, and the possibility that a higher profile for the collection may result in more requests to use or copy works, Bethlem has turned its attention to ensuring that records of who holds the copyright for works are up to date and that they are happy to let us pass on their details to an agency to manage copyright permission requests.  Even simple things like producing post cards of art works, for sale in the new shop, means that the museum must seek permission to create them.   

Undertaking this work has been timely as there have been some changes in law in April this year which mean that museums can copy for preservation/ conservation reasons and allow use of works for educational or research purposes in a similar way to libraries, partially resolving some loopholes in law that were becoming more problematic as digitisation and public access via the web has become common practice.  Copyright issues have for that reason been in the air and it seems a good time to have a blog shedding light on this hidden area of museum work.

So, ensconced in my dark cupboard at the back of the existing building, I began the task.  To give you a sense of the challenge: in June after a quick review of information we held we were aware that of the 154 artists whose works are in the collection only 9 were out of copyright (more than 70 years after death of the artist) and one was a written bequest that clearly transferred the copyright to Bethlem.   A previous attempt to contact some artists in 2013 meant that a further 7 living artists, or their relatives, had given us written permission to use the works.  This meant that we needed to contact or trace 137 copyright holders, of whom we had possibly incorrect contact details for them, their representatives, or that of relatives who had inherited the copyright, for only 8.

The scale of the task of tracing copyright for Bethlem’s art collection is a reflection of its unusual collection, the circumstances of their creation, and the stigma associated with those circumstances.  Although some of the works in the collection were created by trained artists, or people who became artists after their contact with mental health services, a large number of the artists whose work the Museum holds  were patients, or staff, or people without mental health needs who had assisted in comparative experiments.  Some works were collected by psychiatrists interested in the therapeutic value of creative expression and then transferred to the museum. An example is the inclusion of a note on the back of a drawing which states ‘found in the drawer of Dr.....’ who had been a collector, his successor sending on the work assuming it formed part of his collection.  It may never be possible to trace who the artist was in such a case.  In others, patients deliberately chose to remain anonymous so there is no record of them.  Others have used pseudonyms: some we know and can contact, others who remain a mystery.  This means that the collection holds a very high proportion of ‘orphan works’, where the copyright holder is unknown, far more than the norm.  The Imperial War Museum, for example, in its response to the recent consultation on UK proposals on licensing Orphan Works, estimated that 20% of its collection are known or supposed orphan works.

The proportion of ‘orphan works’ artists in the collection has meant that the review of copyright has become a ‘due diligence’ review, demonstrating a clear process to attempt to trace artists before they can be used.  This again is timely as there are national proposals to create a central register of orphan works, and to develop clearer guidelines as to what constitutes ‘diligent’ search.  This may mean Bethlem will be registering a number and this review has entailed recording steps taken in a diligent search to allow registration, if needed, at a future date.    

However, in the process we have been solving a few mysteries.  And here is where the detective work truly comes in...  Even where an artist has become renowned as an outsider artist, tracing their copyright can call for some tenaciousness (if not hardboiled) investigation. 

To be continued...

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