It's important that your historic preservation organization take steps to protect its intellectual property (IP) — such as educational outreach materials, historical photographs, archives — and to respect others' rights to their IP.

Below are answers to some commonly asked questions related to IP rights that your organization might face.

1. Our organization prepared a landmark nomination for a historic property. Do we need to copyright our findings? What rights do I have as a researcher and writer?

   Copyright is a form of IP right that protects original works of authorship in any number of media, including written works (essays, articles, blog entries), audiovisual work (movies, films), or music (compositions, recordings). Copyrights are now automatic as a matter of law. This means that as soon as you hit the save button, your work is protected by a copyright. You do not need to register the work to protect it.

   However, there are some reasons to register a copyright. The registration puts others on notice of your copyright. If your organization does file a lawsuit, a registration would permit you to claim special statutory damages. Without copyright registration, you must prove specific damages, which is hard to do. Registration also negates certain innocent use defenses.

   If the landmark nomination is a key document that will be used again and again, it is probably worthwhile to file for formal copyright registration. You can register the document online with a small filing fee. However, your organization does not need to register every written work it creates. You should consider registering any key documents that are integral to your mission, such as training materials, guidebooks, or other critical materials tied to your fundraising and credibility within the community.

   Your copyright is subject to the following important limitations:

   • Historical facts are in the public domain, which means no one can claim authorship of them. An author of a creative work does, however, own a copyright to protect the particular manner in which he or she has recounted a history. Someone else cannot copy verbatim how an author has articulated a particular history.
   • The general ideas conveyed by a landmark nomination are not protectable. The overarching concept, structure, and rhetorical devices used in a nomination are in the public domain and cannot be copied by someone else. However, when it comes to copyright law, there is a fine line between an idea and a protectable expression. Even attorneys and courts have a hard time drawing this line.

2. If I am writing an article for my newsletter or website and I use historical research online, do I need to do more than cite the source?

   You are not protected from a copyright infringement claim simply by including attribution (citing the source). However, you may want to cite your source to maintain the integrity of your work. You should assume that most of what you find online is subject to a copyright and owned by someone. One possible exception is works published before 1923, which are likely now in the public domain. However, facts and ideas cannot be protected by copyright. You can borrow those.

   If you intend to copy large sections of someone else's work verbatim (such as reproducing a full article), you would likely need official permission from the copyright owner. Be cautious about using photographs you find outside your own archive. Review the terms of use on the website or in the archive where you found the images.

   Note that your organization's nonprofit status does not automatically mean that you can duplicate the images under fair use. Fair use is a defense to copyright infringement that permits the reuse of limited portions of a copyrighted work for educational or critical, scholarly purposes. Although much of what nonprofit organizations do constitutes fair use, some nonprofit uses could raise serious questions. Whether or not your use qualifies as fair use ultimately depends on how your organization plans to use these materials. If, for example, you reprinted 10,000 copies of a photo and sold them to raise money for your organization, you could be heading into murky legal territory. If you have questions about whether a given use is permissible, you should consult an IP attorney.

3. If I prepare educational materials for my organization's programs, who maintain rights to the material — me (as the preparer) or my organization (as the publisher)?

   Any creative work that you make within the scope of your work as an employee is usually considered the property of the employer and known as a work for hire. In this case, the organization would likely own the rights to your materials. However, a volunteer isn't generally viewed as an employee. If you created the work as a volunteer, you might hold the copyright.

   Your organization should register the copyright for its key documents. For any documents that fall short of that standard, you should still include a copyright notice on the front page of the document (and possibly on the other pages, if feasible). A copyright notice may defend your work from a claim of innocent use. The notice should include the copyright symbol, the date the work was published, and your organization's name. You can also write "all rights reserved."

   Some individuals and organizations release their works under a more permissive license that encourages sharing of copyrighted works. One of the most popular is a Creative Commons license. This is essentially an open-source license that expressly allows others to use and even modify your work within certain boundaries (for example, you can prohibit commercial uses). Your organization should only apply an open-source license to its works after careful deliberation. It's important to remember that once your content becomes available for anyone to use, it will be difficult to control its use later.

4. What do I do if I find something I've written reposted on someone else's website without my permission?

   Before you take action, think carefully about your objectives. Do you want to have the work taken down? Or do you just want credit for writing the material? It may be in your best interest to let the information remain on someone else's site — but with proper attribution. You also need to know all the facts. Before you send off a strongly worded letter, you should confirm that someone from your group, like a well-intentioned board member, did not informally grant reprint permission to another organization. You may want to discuss the matter with an attorney to help frame your objectives and develop a response strategy.

   If the material is posted on a public social media site like Facebook, you may be able to file a claim directly with Facebook or other website rather than contacting the person who posted the content.

5. My organization maintains an archive of historic photos. Many of these photos were donated by local residents. Who maintains the rights to these images if someone wants to reproduce them online or in a print publication?

   Copyright is an intangible right that is embedded in, but exists separately from, the tangible copy of a photo. Even if you have the physical copy of the photo, the copyright holder (often the photographer) owns the exclusive rights to copy, modify, or publicly display it.

   Ownership issues can get complicated, however, especially if the donor didn't actually take the photograph. You may need to talk with an attorney to sort out ownership issues. This is especially important if you plan to reproduce a donated family photo in a publication, on your website, or in fundraising materials. One way to address potential issues is to include an assignment of IP rights in your standard donation agreement for personal materials, such as family photographs, so that your organization will own the exclusive rights to copy, modify, or publicly display it.

   You also need to make sure the content of the photo doesn't capture someone else's copyrighted work, such as a painting, sculpture, or even a building that may be subject to copyright protection.

   The use of the photos can also apply to areas of the law outside of copyright. Most states' laws protect a person's right of privacy or right of publicity and allow him or her to control any commercial use of their image. Whether these rights are exercised would depend on several factors, including the types of people involved (celebrities or ordinary people) and the way the organization intends to use them (commercial or non-commercial).

6. Many photographs I have taken for my organization are posted online and give me credit as the photographer. A building in one of my photos was torn down, and now bloggers are using my photo online to raise awareness about building teardowns without giving me credit. I don't mind if my photo is used to highlight this issue, but I would like to get credit for my work too. What should I do?

   The unauthorized reproduction of your photograph would technically be copyright infringement. But you must determine who owns the copyright to your photographs. The copyright holder of the photograph — whether that's you or your organization — has the right to demand that bloggers and other users remove that content from their website. However, it is conceivable that these uses of your photo might be considered fair use, so you may want to consult an attorney before you take action.

7. If our organization partners with another group and we agree to exchange membership information about our members, do we have to notify our members first?

   Yes. If you're going to share your member contact information, you should notify the members that you're doing so. You should also include an opt-out option on your membership form so people can tell you not to share their contact information with other groups. If you're collecting information from your members online, your state might require that you provide a written privacy policy on your website.

8. If our organization partners with another group on a program, do we maintain the rights to the materials we generated for that program?

   If both organizations contribute content that is merged into a single project, the organizations would likely be viewed as joint authors — and copyright holders — of the work. This means that either organization would be able to use the final product, but each would have to share half of any royalties with the other organization (if applicable). Joint ventures can get messy and complicated, so your organization would be wise to prevent any future copyright disputes by preparing a written agreement. This agreement should spell out ownership and permissible uses of your jointly created materials.

9. If we hold a contest to create our organization's logo or a graphic for one of our projects, who holds the rights to the design — our organization or the designer?

   As part of the contest rules, you should have the designer agree to assign all rights to your organization. Otherwise, the designer would hold the rights. Some states have laws that govern contests, so you should also consult with an attorney to ensure you comply with local laws before you announce the contest.

10. An offensive remark has been sitting on our organization's blog for a few weeks. Is there anything else we can do other than remove the remark?

    This is more of a public relations question than an IP question. Your organization should have an internal policy for social media, and a social media coordinator who is responsible for handling these types of issues consistently. Your response needs to be coordinated with the appropriate PR people in your organization.

    Legally, the best way to address this issue is in the terms and conditions of your blog. Make sure you expressly reserve the rights to remove any content and prohibit certain users from using your website. State in writing that website use is a privilege, and that users cannot abuse the service. Of course, you need to be careful about the potential PR fallout if you simply remove a comment. You may want to use the message as an opportunity to thoughtfully respond to a concern that others may share.

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