Dear Dr. Powers:
As executive director of the Kansas state historical society you request our opinion on the following questions:
"First, is the society acting within its rights as a state agency to [limit public photography of its artifacts, buildings and sites to non-commercial use, except in special cases whereby permission is granted by the museum director.] If so, is it sufficient notification to inform the public of this limitation through a statement included in the Museum's and historic sites' brochures and other hand-outs, as well as a few judiciously placed signs in the public areas of the building?
"Secondly, may the Society charge a fee for, or retain a percentage of proceeds from, commercial reproduction of collection images and objects or images of the sites."
The state historical society has the authority to "preserve" historic properties and to "establish standards and criteria for the preservation, restoration, and maintenance and operation of properties under the jurisdiction of the agency." K.S.A. 75-2721(4) and (5). This statute arguably gives the society the authority to restrict the photography of its artifacts, sites and buildings, although it may be difficult to enforce such a rule, especially when it comes to the photography of buildings and various sites.
Regarding your second question, we have found no statutory authority empowering the state historical society to charge a fee for, or retain a percentage of, proceeds from the commercial reproduction of society objects or sites.
"Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes; therefore, any exercise of authority claimed by an agency must comes from within the statutes; there is no general or common-law power that can be exercised by an administrative agency." Pork Motel, Corp. v. Kansas Department of Health and Environment, 234 Kan. 374 (1983).
Furthermore, any money received by a state agency, unless specifically authorized by statute to go into a specific fund, goes into the general fund. K.S.A. 75-3036. Therefore, to be able to charge a fee or retain a percentage of the proceeds, the state historical society must have statutory authority and such authority should designate the specific fund where the monies should be deposited. Alternatively, the society could seek such a designation through their appropriation bill each year.
In conclusion, the Kansas state historical society has the authority to limit the photography of its buildings, sites and artifacts, albeit difficult to enforce, but does not currently have the authority to charge a fee for, or retain a percentage of, the proceeds from such photographs or reproductions.