Law and Ethics

Ethics Principles of conduct governing an individual or a group

System of Ethics A set of principles and methods for distinguishing right from wrong

Code of Ethics A standard of behavior that exists between the dictates of ordinary morality and the actual laws of the land.

Museum workers should not accept commissions or gifts from businesses Museum workers should not accept commissions or gifts from businesses. Museums should refuse to acquire objects obtained through theft. Trustees should be discreet in discussing administrative and executive matters with staff members.

Deaccessioning The process of permanently removing an object from a museum's collection.

AAM Code of Ethics Two principles: First, that public service is paramount for museums and museum professionals. Second, that the duty of loyalty to the missions of museums is the essence of that public service.

Governance Collections Programs

Ethics Legal Standards

A code of ethics is a set of principles that establish a standard of behavior that exists between the dictates of ordinary morality and the actual laws of the land.

An ethical code sets forth conduct that a profession considers essential in order to uphold the integrity of the profession.

The purpose of a legal standard or a law is to require conduct that allows us to live in society without undue harassment.

Codes of ethics, in general, are based on commitments to public service and personal accountability.

Adherence to professional ethical codes is often voluntary.

Ethical standards can in time impact legal standards by raising or lowering them.

Museum Trustee Legal Standards Duty of Care Duty of Loyalty Duty of Obedience

Trustee Governance Establish policy Exercise oversight with due diligence Avoid conflicts of interest Perform duties in good faith

Codes of Ethics To encourage conduct that clearly meets or exceeds legal standards. To encourage conduct that merits public confidence.

The effectiveness and success of a museum is directly related to the public’s perception of its integrity.

Adherence to an ethical code can affect a court’s interpretation of a legal standard.

Recommendation First—adhere to a professional code of behavior that sets forth general principles. Second—utilize these general principles to write a more specific code of ethics designed for a particular institution.

Conflict of Interest A conflict between the private interests and the official responsibilities of a person in a position of trust.

Simply because a conflict of interest exists does not make the situation unethical.

6 Significant Legal Issues that Impact Museums American with Disabilities Act (ADA).  Native American Graves Protection and Repatriation Act (NAGPRA). Unrelated Business Taxable Income (UBIT).  Legal Liability. Artists’ Rights. Copyright.

American with Disabilities Act (ADA) of 1990 Museums have to work to enhance the experiences of visitors with disabilities or the work environment of employees with disabilities.

ADA: Four Direct Impacts Reasonable accommodation of employees Prohibition of discrimination on the basis of disability Accessibility in all new museum facilities TDD “telephone” service and captioning

Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 Set standards, conditions, and definitions under which certain Native American objects and remains must be repatriated and encouraged cooperation and consultation with Native American tribes and organizations in its implementation.

Unrelated Business Taxable Income (UBIT) Museums are subject to taxation on specific activities if these activities are unrelated to their exempt purposes.

Activities that may qualify for the UBIT tax: Museum stores. Eating facilities. Parking. Travel tours. Sales of collection objects. Fundraising. Advertising. Income from investments. Rentals. Royalties. Some programming.

Legal Liability Museums and other nonprofits have no special immunity to lawsuits simply due to their public service missions. The ultimate responsibility for ensuring that a museum follows the law is vested in the Board of Trustees or the legal governing body.

Legal liability usually stems from one of two branches of law: Tort law Contract law

Tort—any wrongful act, or failure to act, that does not involve a breach of contract. Contract law—all other wrongs and are considered breaches of contract.

Areas of Risk Governance Personnel Collections Management

Artists’ Rights The Berne Convention Implementation Act of 1988 and the Visual Artists Rights Act of 1990 expanded legal protection to recognize an artist’s moral rights as well as property rights to work that she/he creates.

Artists Moral Rights Moral premise has two elements: Right of paternity Right of integrity Right of paternity—ensures that the public knows the creator of a work and prevents a work from being attributed to the wrong artist. Right of integrity—prevents any contortions of the work through distortion, mutilation, modifications, or derogatory action.

Copyright The exclusive right to publish and sell the substance and form of a literary, musical, or artistic work.

Items that can be copyrighted: Works of art. Photographs. Literary works. Musical works. Dramatic works. Pantomimes and choreographic works. Pictorial, graphic, and sculptural works. Motion pictures and other audiovisual works. Sound recordings. Architectural works.

Five Copy Rights Right to reproduce the work. Right to make derivative works. Right to sell the work. Right to perform the work. Right to publicly display the work.

Fair Use Doctrine Use by reproduction of copyrighted works for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

Basic Texts for Legal Issues Museum Law: A Guide for Officers, Director and Counsel, by Marilyn E. Phelan, Professor of Law and Museum Science, Texas Tech University. A Legal Primer on Managing Museum Collections, 1998 update, by Marie C. Malaro, formerly director of the Museum Studies Program at George Washington University and legal counsel for the Smithsonian Institution. Art and Museum Law: Cases and Materials, by Robert C. Lind, Professor of Law, Southwestern University School of Law, Robert M. Jarvis, Professor of Law, Nova Southeastern University Law Center, and Marilyn E. Phelan, Professor of Law and Museum Science, Texas Tech University.