Copyright and other restrictions that apply to publication/distribution of images vary depending if the images fall under the “fair use” clause in copyright law. You may assess your risk of using an image by reviewing some answers to frequently asked questions. These questions/answers are addressed in great detail at the Library of Congress website http://www.loc.gov/rr/print/195_copr.html. Information at this site applies to use of images in the United States. Use outside of the U.S. is governed by laws of the country in which the material is used.
1. Can I use an image that I’ve found in a collection? To answer this question requires answers to two other questions.
a. What do you know about the rights associated with the image? Does the image have a license agreement or rights statement? Does the agreement or statement note the collection the image comes from or the artist who made it? What restrictions are listed? Possible notations might include the following:i. No known restrictions
ii. Copyright expired
iii. Creator has released rights
iv. Creator has agreed to allow image to be displayed but still retains publication rights.
b. If any restrictions are listed, contact information to obtain permission should be provided. If the statement states that images were copyrighted and the copyright has expired, the images are considered in the public domain. If an agreement or rights statement is not provided, gather what information you can about the image. It is the user’s obligation to determine and satisfy copyright or other use restrictions.
c. How do you plan to use the image? Use under the “fair use” copyright clause is less of an issue; however, pay attention to agreement clauses or rights statements. Sometimes an answer is clear; other times it is not.
2. How do you plan to use the image? After you learn about any restrictions for an image, consider how you will use the image.
a. Is your use considered “fair use”? Section 107 of the U.S. Copyright law contains a list of the purposes for reproducing a work that are considered fair use.
b. How commercial is your use? The more money you will make from using an image, the greater your risk. An owner of a copyright has the right to reproduce and to authorize others to reproduce the work in copies and to benefit as a result. So, if you make a lot of money using the image, the copyright owner loses money—and vice versa.
c. Is your image of a well-know person and will be used for advertising? If you use an image of a well-known person for advertising and will make money using the image, consider privacy and publicity rights.
i. Privacy rights protect people from unauthorized use of their image that is intrusive or embarrassing. Photographs of private individuals, who are not celebrities or public figures, can be published without their consent only in an editorial context. However, you cannot libel, hold up to ridicule, or misrepresent these individuals.ii. Publicity rights protect a person’s right to benefit from the commercial value of using that individual’s name, image, or voice. The editorial use of a photograph of a celebrity, so long as it does not libel or slander, requires only the release of the holder of the copyright in the photograph.
Deciding whether you can legally use an image can be complicated. The copyright law was written traditionally for books and is limited for other mediums. The law needs to be interpreted for photographs and prints. That interpretation is not always clear, and there are few legal precedents. Also, a lot of “orphan” images abound on the Internet. When you consider using one of these images, ask these questions:
1. Has the image been published by others? Repeated publication without a rights holder
making claim lessens liability.
2. What would a search produce? Request from the Copyright Office a copyright search. A good faith effort shows good faith.
3. Should I document a search? Record your searching efforts and what you did or didn’t find. This shows due diligence in searching for a rights holder.
4. Where can I get more detailed information? Check the U.S. Copyright Office site related to orphan works for more information at http://www.copyright.gov/orphan/
If you plan to copy and publish an image from a copyrighted, published source, you
should check with the publisher, the “owner” to the version appearing in the book.
More information about using images may be found at http://www.copyright.gov/. Another resource is How to Use Images Legally by Cott Tambert at http://www.pdimages.com/law/