A Guide to Deeds of Gift
Donors of historical materials are individuals or organizations that give materials to repositories, including historical societies, archives, or special collections libraries. Donated materials often include papers, records, and digital material documenting personal lives and family history or the history of organizations such as businesses, community associations, and religious groups. Repositories are administered by professional archivists, curators, or librarians, who assemble these materials, preserve them, and make them available for research. The relationship between you—as a donor—and a repository must be based on a common understanding of your wishes and the ability of the repository to carry out its mission and responsibilities. You should review the materials being offered for donation with the archivist or curator and discuss the repository’s policies and procedures for the care and use of donated materials. Most repositories have a collecting policy that informs their decisions about what they can accept. If both parties agree that the repository is an appropriate place for preservation of the materials, then both parties sign a deed of gift.
The Deed of Gift
The deed of gift is a formal and legal agreement between the donor and the repository that transfers ownership of and legal rights to the donated materials. A legal agreement is in the best interest of both donor and repository. After discussion and review of the various elements of the deed, the donor or donor’s authorized agent and a representative of the repository both sign it. The signed deed of gift establishes and governs the legal relationship between donor and repository and the legal status of the materials.
The Elements of a Deed of Gift
Various elements are essential to a deed of gift; others may be specific to the repository to which the materials are donated. The typical deed of gift identifies the donor, describes the materials, transfers legal ownership of the materials to the repository, establishes provisions for use, specifies ownership of intellectual property rights, and indicates disposition of unwanted materials. If you have any questions about the language of the deed of gift, ask for an explanation from the archivist or curator or from your attorney.
Name of the Donor and the Recipient
If you created and/or collected the materials you are donating, all that is needed in this section is your full legal name. If you are acting on behalf of someone else who created and/or collected the materials, include information about your relationship to that person or entity. You might note, for example, a sister, niece, son, or business agent. If you are not the creator of the materials, the repository may ask you for verification that you have the legal authority to donate them. The repository will provide its full name as the recipient.
Title and Description of the Materials Donated
This is generally a summary, such as “John Doe Papers,” or “Records of the First Baptist Church of Detroit,” and is written by the repository staff in consultation with the donor. The repository may wish to be more specific in describing the materials or append a detailed listing of the materials to the agreement.
Transfer of Ownership
In this section, the donor formally agrees to transfer legal ownership and physical custody of the materials, including future donations, to the repository. The deed will specify a point in time when the materials become the legal property of the repository (usually upon signing the deed or upon physical transfer of the materials to the repository). The repository will manage and care for them according to accepted professional standards and its mission and objectives.
Repositories prefer to accept materials through transfer of ownership. The cost of storing, preserving, and making collections available for research is so high that repositories generally can afford to do so only for materials they own. Most repositories do not accept materials on loan; those that do will generally not accept them without a legal deposit agreement outlining the terms and fixed duration of the loan. If you are donating materials that were created in digital formats, the repository may make it a condition of the gift that you not donate the same files to another repository.
After transfer of ownership, the staff of the repository will review the materials and may find that there is a reason to reformat some or all of those materials. For example, long-term preservation of fragile materials is a primary reason for microfilming, digitizing, creating multiple digital versions, or copying materials for use by researchers. The repository may also publicly present the digital versions on its website to the extent allowed under copyright law. Unless you note to the contrary in the gift agreement, when you transfer legal ownership of your materials to the repository, you agree that the staff may make reformatting and display decisions.
The archivist or curator will discuss with you the means by which your collection can be transported to the repository. In some cases this will involve a visit by an archivist or curator to your home or office. The repository may prefer to capture digital material directly from your computer. Part of that process is discussing how you use your computer in your work or personal life, including organization, file names, and file storage, especially storage in places other than your personal computer. The archivist or curator will need to know the current location of all the digital material that you wish to donate, such as backup disks or thumb drives, other computing devices, networked or cloud storage, or on the Internet.
Access to the Collection
An essential mission of repositories is to make their collections open and available for research use. They accomplish this because most donors do not limit access to donated materials. There may be instances, however, when a donor or repository feels it is appropriate to restrict access to all or a portion of the materials for a limited and clearly stated period of time.
If the materials you donate contain student records, financial records, medical records, or legal case files relating to third parties (individuals other than you, your immediate ancestors, or your organization), federal or state privacy laws may apply. If you know that such materials exist, bring this to the attention of the archivist or curator. You may request that the archivist or curator discuss with you any such materials that the repository discovers during cataloging.
Be aware that any digital materials that you donate, including computers, computer disks, and other digital storage media, may contain passwords, web browsing history, other users’ files, and copies of seemingly deleted files. Whether or not these files are apparent to researchers will depend on the initial method of transfer and on the reposi-tory’s access policies and procedures for handling digital material, which may change over time as technology evolves. Discuss any concerns about deleted content with the archivist or curator.
If your concerns go beyond these types of materials, explain them to the archivist or curator, and be as specific as possible when you discuss the papers or records you want to restrict. If needed, the archivist or curator will work with you to arrive at language regarding a restriction for a limited time that is acceptable to you and which can be enforced by the repository.
Transfer of Intellectual Property Rights
When you sign the gift agreement, you transfer legal ownership of the physical and/or digital materials you donate. Ownership of intellectual property rights (primarily copyright, but including trademarks and patent rights) may also be legally transferred by the deed of gift. Copyright generally belongs to the creator of writings or other original material, such as photographs or music. Donors are encouraged to transfer to the repository all rights they possess in the donated materials; this assists researchers in their scholarship by making it easier to quote from or publish documents. If you wish to retain all or a portion of the intellectual property rights you own, you may include such a provision in the deed of gift, but you and the archivist or curator should agree on a date when full rights will be transferred to the repository. A separate license for digital content, distinct from copyright ownership, may help a repository to manage the preservation and use of that content. You cannot transfer ownership of rights to the works of others, such as letters written to you by others, included in the materials you donate.
Under the terms of U.S. Copyright Law, repositories may provide copies of items in their collections for scholarly research use, regardless of who owns the copyright. Under the “fair use” exemption, the law permits that researchers may publish portions of an item under copyright. Permission to publish or quote extensively from the material must still be obtained from the copyright holder. To learn more about copyright, see www.copyright.gov or ask your attorney.
In the course of arranging and describing the materials you donate, the repository’s staff will retain substantive materials of enduring historic value and separate out those materials that are duplicative or outside the collecting scope of the repository. Discuss with the archivist or curator your preferences for the disposition of separated materials and arrive at an agreement that can be stated in the deed of gift. Options include shredding out-of-scope materials, transferring them to another repository, or returning them directly to you. These options can be spelled out in the deed of gift.
Repositories vary widely in the kinds of materials they collect, the users they serve, and the facilities in which they preserve materials and make them available for research. As a result, a repository may require or permit the deed of gift to contain language related to a wide range of other issues. If you have any questions or concerns about what is or is not included in a deed of gift, it is important that you raise these with the archivist or curator before signing the agreement. Although a repository may not be able to accommodate a specific request, it is best to discuss all relevant issues.
Signing the Deed
It is important to sign the deed of gift as soon as you and the archivist or curator have discussed and agreed on its provisions. Few repositories will accept a collection without a signed deed of gift. If necessary, the deed of gift can be amended if both sides concur. Amendments should be signed and dated by both the donor and the repository’s representative.
In certain circumstances, it may be possible for a donor to take a tax deduction for the donation of a collection to a repository. Speak with your tax accountant or attorney about this possibility. Archivists cannot give tax advice, nor are they permitted to appraise the monetary value of a collection that is under consideration for donation to their repository. The archivist may be able to provide you with a list of local manuscript appraisers who can (for a fee) make monetary appraisals. It is up to you, as the donor, to arrange and pay for any such appraisal.
The deed of gift confirms a legal relationship between the donor and repository that is based on a clearly articulated and common understanding. This relationship ensures that the donated materials, which help illuminate our past and its influence on us, are preserved and made available to future generations.