Copyright and Other Restrictions
That Apply to Publication/Distribution
of Images:
Assessing
the Risk of Using a P&P Image
1. Can I use
an image that I've found in the P&P
collections?
The
answer to this question involves considering
other
questions:
- What do you know about the rights
associated with the image? [more
about this]
and
- How do you plan to use
the image?
(For instance,
if your use falls under the "fair use"
clause in the copyright law, copyright
will be less of an issue, though you
will need to pay attention to any donor
restrictions) [more
about this]
Sometimes the answer is very clear. Other
times the answer isn't clear at all.
In
all cases, it is the researcher's obligation
to determine and satisfy copyright or
other use restrictions when publishing
or otherwise distributing materials
found in the Library's collections.
1a. What do you know about the rights
associated with the image?
When the Prints & Photographs
Division has information about the rights
associated
with an image or a collection of images,
it conveys that information to researchers
through catalog records and/or rights
statements.
Can you find:
If no catalog record data
or rights statement is available,
you will need to find the
rights information related
to the image
or collection yourself. [more
about doing your own evaluation]
Notes Found in P&P Catalog
Records
Catalog records may
contain: |
|
|
When P&P staff have received or gathered
information pertinent to rights for individual
images, notes are added to the text of
the catalog records
to
explain what is known.
- Does the catalog record associated with
the image include text that says "No
known restrictions on publication"?
-
Does the catalog
record include text that says “Publication
may be restricted” and
refer to a rights statement? See "Rights
and Restrictions statements" below.
Example:
Does the catalog record include text
that says “May be
restricted: Information on reproduction
rights available in LC P&P Restrictions
Notebook” (or similar
wording). This refers to a notebook
that is now online
in the form of rights statements. See
"Rights and
Restrictions Statements,"
below.
Example:
-
Does the catalog
record include text that says "Rights
status not evaluated. For general information
see 'Copyright and Other Restrictions...'
(http://lcweb.loc.gov/rr/print/195_copr.html)." This
means the Library has not received or
gathered information pertaining to the
rights status of the image (see "Doing
Your Own Evaluation," below).
Example:
-
What if there is
a note with different wording from
the above examples or no note
at all? Catalog records have been
created over a long
period
of
time, so wording
of rights information may vary. If
a record
does
not
contain a rights note, it may mean
the Library has not received or gathered
information pertaining to the rights
for the image and you will need to
gather that information yourself
(see "Doing
Your Own Evaluation," below).
Top of Page
Individual Rights and Restrictions
Statements
Rights and Restrictions
statements written by P&P
for specific collections or artists
are available online. Look on
the Rights
and Restrictions Information page
or search in the site search box on
that page for the name of:
- the collection from which
the image comes, or
- the artist who made it.
If there is no rights statement
for a collection, we may not have analyzed
it yet. The information below is intended
to help you interpret the language
found in rights and restrictions
statements.
If images were copyrighted and
copyright has expired, we say “Images
in this collection are considered
to be in the public domain.”
Example:
[view
full statement]
-
If collectively the images meet
the criteria for the "no known
restrictions" designation,
we say "no known restrictions"
in the rights and restrictions
statement (see
information about the meaning
of "No
known restrictions" above).
Example:
[view
full statement]
-
If images have been placed
in the public domain by
the creator or rights holder,
we say that the images are
in the public domain in
the rights and restrictions
statement.
Example:
[view
full statement]
-
If images are restricted and
the Library has information on how
to contact the rights holder
for permission,
we provide
that information.
Example: Ann Telnaes Rights and Restrictions
Information
[view
full statement]
- If the donor of the collection
has specified restrictions, we provide
that information.
- Sometimes the donor’s
restriction is on a certain
type of use. Example: LOOK
Magazine Photograph Collection
[view
statement]
- Sometimes the donor’s
restriction is on a certain
type of material within
the collection. Example:
G. Eric and Edith Matson
Photograph
Collection [view
statement]
-
Sometimes the donor has
specified the length of
time that the collection
is restricted. Example:
Brigitte Stelzer [view
statement]
-
Rights statements are sometimes
confusing because images within a
collection were sometimes
made or gathered under
varying circumstances. While the vast
majority of images in a collection
may be analyzed one way, there
may be exceptions, and a few
images may be analyzed another
way.
Example:
U.S. Farm Security Administration/Office
of War Information/Office of Emergency
Management/Resettlement Administration
Black & White Photographs Rights
and Restrictions Information
[view full
statement]
Example:
Theodor Horydczak Collection
Rights and Restrictions Information
[view full statement]
Top of Page
Doing Your Own Rights Evaluation
When the Prints
and Photographs Division has not
provided catalog
notes or rights statements, you
will need to
find the rights information related
to the image or collection yourself.
You'll need to gather whatever
information you can about the image.
(Reminder: in all cases,
it is the researcher's obligation to
determine and satisfy
copyright or other use restrictions
when publishing or otherwise distributing
materials found in the Library's collections.)
Was the Image Made by the U.S. Government?
Is there a credit on the image that indicates
a U.S. federal agency or military
service?
Example:
The U.S. Copyright Office
information says that "Works by the
U.S. Government are not eligible
for U.S. copyright protection." (Circular
1 [pdf], "Copyright
Basics," page
5.)
Or Do You Have (Or Can You Get) Copyright
Registration Information for the
Image?
Evaluating the rights status
of an item is
easy when the
name of a copyright claimant and
the copyright registration number
and date is found on the
image or in the catalog record that
describes it.
Example: A catalog record
with copyright date and copyright
registration
number.
Searching for Copyright
Information
To determine whether
you can get copyright information
if it is not in the
catalog record or on the item,
you can
- search the records of
the U.S. Copyright Office yourself,
or
- hire
someone to perform a search
[see, for example, P&P's
list of searchers] or
- pay the Copyright Office for
a search.
Further information about copyright searching
is available in U.S. Copyright
Office Circular
22, "How to Investigate the
Copyright Status of a Work," and
from the Search Division of the
U.S. Copyright Office (telephone
202-707-6850). Searches cannot
be considered conclusive
but will show a good faith effort.
If you find copyright registration information,
the next step is to determine how
long that copyright protection would
last (see How Long
Copyrights Last,
below)
In the Absence
of Copyright Registration Information,
Do You Think the Item is Published
or Unpublished?
The U.S. copyright law distinguishes
between "published" and "unpublished" material,
with different terms of copyright
applied to each.
Based on what you conclude about whether
the work in question is published or unpublished, the next step is
to determine how
long the copyright protection would
last.
How Long Copyrights Last
You can
apply facts
about the duration
of copyright to determine
if a copyright has expired or
is still in effect. The full copyright
law
is available from the U.S.
Copyright Office
web site at http://www.copyright.gov/,
as are circulars that explain specific
aspects of the law, including these
circulars, which deal with duration
of copyright:
The following facts are drawn from
the circulars listed above:
Works published or registered
in the U.S. before 1923 are
now in the public domain.
Explanation: According to the Copyright
Act of 1976, works registered
for copyright or published with
a copyright notice were protected
for a maximum
of 75 years
of copyright protection, assuming
the copyrights on the works
were renewed (28 years first term
plus
47 for
the
second, if renewed). Public
Law 105-298 enacted in October 1998
increased the
maximum to 95 years [28 years
first term and 67 for the second,
if renewed].
Before 1998 the longest amount
of time a work could be protected
was 75 years,
so works before 1923 were no
longer
protected (1998 minus 75 years
equals 1923). When the law changed,
the 1923
date was ‘frozen” and
will remain so until 2018 [2018 minus
95 equals 1923]. Starting in
2018
the date
that works are no longer protected
will again change yearly, being
calculated as the current year
minus 95 years.
-
Works
published with notice or registered
in the U.S. from and including
1923 through 1963 are now
in the public domain
unless the copyright was
renewed,
in which case they are protected
for 95 years
from the copyright or publication
date. A copyright search is
required
to establish if the item was
copyrighted and that the
copyright was renewed
(see information above about copyright
searching ).
- Works published with notice or
registered between January 1, 1964
and December 31, 1977 are protected
for 95 years.
Note: In some interpretations the
fact that no copyright notice
is found on the item that was published
from 1923 through 1977, means that
the item has passed into the public
domain (see, for instance, Cornell’s
chart (link below) on when works
pass into the public domain).
The pre-1978 copyright law required
that a copyright
notice be placed on a work as
way to alert potential users
that permission
was needed. The criterion of
the copyright notice is easy
enough to apply to
books, but a bit tricky with
images, since the original work
may have had
a copyright notice which was
not reproduced on subsequent
copies or the copyright
may have been on the work in
which the image appeared, rather
than on
the image itself. The U.S. Copyright
Office literature states that "Before
March 1, 1989, the use of the
notice was mandatory on all
published works. Omitting the
notice on any work first published
before that date could result
in the loss of copyright protection
if corrective
steps are not taken within a
certain amount of time.”
(Circular
3 [pdf], "Copyright Notice," page
2).
If you think the item should be considered unpublished,
this guidance from the U.S. Copyright
Office applies:
-
Works created before
January 1, 1978 but not published
or
registered by that date are
protected by copyright law for
the life of the creator plus
70 years. (Circular
1 [pdf], "Copyright Basics, " page
5)
-
Works created on or
after Jan. 1, 1978 are protected
for the
creator's life
plus 70 years. (Circular
1 [pdf], "Copyright Basics," page
5)
Situations Where
the Image Was Made
"For Hire" or Is an Anonymous
or a Pseudonymous Work
One complicating factor is when someone
makes an image for someone else
(a work "for hire"). The U.S.
Copyright Office information has this
to say
about such situations:
Works made for hire may be protected
by copyright by the employer, not
the employee. (Circular
1 [pdf], "Copyright Basics," page
2). The duration of copyright for
works for hire and for anonymous and
pseudonymous
works is 95 years from publication
or 120 years from creation, whichever
is shorter.
Foreign Works
For use within the United States, the following
guidelines apply:
- Works published outside the United
States before July 1, 1909 are
considered to be in the public
domain. [Fishman chapter
18.12 and 18.15]
- Works published outside the
U.S. with a U.S. Copyright notice
before 1923 are considered to
be in the public domain. [Fishman,
chapter 18.13 and 18.15]
- Works made by the government of the
United Kingdom (England, Scotland,
Wales, Northern Ireland) and published
more
than 50 years ago are considered
to be in the public domain. [Schultz,
p. 219; Office of Public Sector
Information web site - http://www.opsi.gov.uk/about/faqs.htm ]
Use
Outside the United States
Through various international treaties,
most nations have established reciprocity
with regard to copyright protection.
According to the U.S. Copyright
Office, “Protection against unauthorized
use in a particular country basically
depends on the national laws of
that country. However, most countries
offer protection
to foreign works under certain conditions
that have been greatly simplified
by international copyright treaties
and conventions.” (Circular
38A [pdf], "International Copyright
Relations of the United States," page
8.) If your use is going to take place
outside the United States, you will
need to be aware of the laws of
the country in which you will be
using the material and the treaties
and conventions in which it participates.
The list of U.S. copyright relations
as of 2003 that is available in
Copyright Circular 38A may be
of assistance:
http://www.copyright.gov/circs/circ38a.html#2003
Situations Where There is Simply Insufficient
Information
Unfortunately, many P&P images lack
information on the image or associated
with
the image (particularly the date
of creation or the name of the individual
or
firm that created the image) to
help with rights evaluation.
Example:
Masterpieces of Art building, New York World's
Fair, 1939-1940
These images, sometimes called "orphan
works," are the most vexing to researchers
trying to determine rights. You
will need to consider what you know
about when and why
the image was created, what you
plan to use the image for, and then
assess the risk of using it for
that purpose.
-
Consider whether the image has been
published by other researchers.
Repeated publication without
a rights holder
making a claim may lessen the
liability of users.
-
Request a copyright
search, even
if you have little information
to go on. The paperwork from
the Copyright Office could show
your good faith effort to establish
the rights status of the image.
- Record the type of
searching you have done and what
you did or didn't find, so you
can demonstrate you used due diligence
in
searching for the rights holder.
It may or may not help to know that the
problem is so vexing that the U.S.
Copyright Office recently
opened an examination of issues
related to orphan works, which
it defined as those whose owners
are difficult or even impossible
to locate. (http://www.copyright.gov/orphan/)
What About Copying One of P&P's Images
from a Book or Other Published Source?
If you are planning to copy and publish
an image from a copyrighted, published
source (e.g.,
a book), you should check with the publisher,
since technically it owns the rights to the
version appearing in the book--though few publishers
realize that or seem to wish to control such
copying.
Finding
More Guidance
Information is available from the U.S.
Copyright Office
web site at http://www.copyright.gov/.
The Prints & Photographs Division
and the U.S. Copyright Office, both
based at the Library of Congress,
are precluded from offering interpretations
of the copyright law, even though
such interpretations are often helpful.
Others have offered such interpretations,
including:
-
A chart laying out when items pass into
the public domain published by the
Cornell Copyright Information Center
[view
chart] . (See
note above about the interpretation
of publication without copyright
notice found on this chart.)
-
A book written by professional
picture researcher Scott Tambert: How to Use Images Legally http://www.pdimages.com/law/
-
John Schultz and Barbara Schultz, Picture
Research: A Practical Guide.
N.Y.: Van Nostrand, 1991. [call
number: TR147.S38 1991 P&P] This
book, for instance, summarized
the problem of the lack of precise
copyright/publication information
when it comes to images:
...Pictures can fall into a
murky area where they may or may
not be copyrighted. These situations
are perilous
to the user, and vexing to the
picture researcher or permissions researcher
who must try to assure the publisher
that he owns the legal right to
reproduce. When copyright is unknown
or ambiguous,
publishers have to make calculated
risk
decisions.... (
p. 216).
- Stephen Fishman, The Public
Domain: How to Find & Use Copyright-free
Writings, Music, Art & More.
2nd ed. Berkeley, CA: Nolo, 2004.
[LC call number: KF3022.Z9 F57
2004]
Top of Page
1b. How
do you plan to use the
image?
After you have gathered whatever facts
are available about the rights associated
with
the image, consider how you
plan to use the
image.
-
Could your use be considered “fair
use”? Section 107 of the
U.S. Copyright law contains
a list of the various purposes
for which the reproduction of
a particular
work may be considered “fair,” such
as criticism, comment, news
reporting, teaching, scholarship,
and research.
(Copyright fact sheet
on fair use, http://www.copyright.gov/fls/fl102.html)
Example: A teacher who wants to obtain
a copy of the photograph “Masterpieces
of Art building, New York World's
Fair, 1939-1940 “ (LC-USZ62-117149)
to show her architectural history
class decides that her intended
use is ok under the Fair Use fact
clause.
-
How “commercial” is
your use? In general, the more
money you make the more at risk
you are.
One of the rights accorded to
the owner of copyright is the
right
to reproduce or to authorize
others to reproduce the work in
copies
and thereby benefit economically.
If your product will generate
a lot of income, the rights holder
has
lost that income. If the expected
profit is low, rights holder’s
loss is low.
Example:
An advertiser wants to
use the “Masterpieces
of Art building, New York World's
Fair, 1939-1940 (LC-USZ62-117149)
on a t-shirt decides not to take
the risk of using the image, given
that his use is commercial and
reliant upon the one image.
A scholar who
wants to use the same image for
a scholarly book on World’s
Fairs decides to take the risk
of using the image, since his
use is
not commercial and the image is
one of many in the book.
-
If you
are using an image for advertising,
will
make money
by using an image of a well-known
person, or using an image
in a way that may misrepresent
or embarrass a living person,
you need to
consider
privacy and publicity rights.
- Privacy
rights protect living
people from unauthorized
use
of their image that is intrusive
or embarrassing.
As John and Barbara Schultz
point
out that: “Photographs
of private persons, who are
not celebrities
or public figures, can be
published without their consent
only in an
editorial context. Even editorial
use is perilous, however,
if any individual who is depicted
is held
libeled, held up to ridicule,
or misrepresented." Picture
Research: A Practical Guide, by
John Schultz and Barbara Schultz
(N.Y.:
Van Nostrand, 1991), p. 226.
[call number: TR147.S38
1991 P&P]
- Publicity rights protects
a person’s
right to benefit from the commercial
value connected with an individual’s
name, image, or voice. John
and Barbara Schultz point out
that: "
Not all well-known people have
a right of publicity, since
not all
of them profit from the commercialization
of their celebrity. Politicians,
for instance, do not ordinarily
require payment for the use
of their images, although they
are public
figures ... As a rule, the right
to publicity is enforced for
commercial reproduction of the
name or likeness
of a celebrity, under the conditions
outlined. The editorial use
of a photograph of a celebrity,
so long
as it does not violate other
laws concerning libel or slander,
requires
only the release of the holder
of the copyright in the photograph." Picture
Research: A Practical Guide, by
John Schultz and Barbara Schultz
(N.Y.:
Van Nostrand, 1991), p. 225-6.
[call number: TR147.S38 1991
P&P]
- More information on privacy and
publicity rights is available in
the Library of Congress online “Legal” notice
at http://www.loc.gov/homepage/legal.html#privacy_publicity
Top of Page
2. This all seems complicated
when all I need is for you to
sign a form giving me permission!
The Prints & Photographs Division
cannot sign permission forms because,
with one exception (the
only
exception is the Seagram
County Court House
Archives), it
does not grant or deny permission
to
publish
or
otherwise
distribute
material from its collections.
- The Prints & Photographs
Division generally does not own
rights
in its
collections (the
only
exception is the Seagram County
Court House
Archives).
- As
a publicly supported institution,
the Library
does
not charge permission fees
for use of material from the collections.
- Since the Library does not
require that
you
receive its permission
before using
an image, the only permission
you need is what may be
required from
the copyright owner or
donor, independently
of the Library.
It can, indeed, be complicated
to figure out whether an image can
be used.
One problem is that the copyright
law traditionally was written for
books and is increasingly written
for music and film, profitable media
for the entertainment industry.
The law has to be “interpreted” to
determine application to photographs
and prints, and that’s not
always so clear, as there is little
case
law
regarding images to draw
on for precedents. The other problem
is that there are
so many “orphan” images
that
lack information needed
for determining rights status or
rights owners.
Top of Page
3. If it displays for me off site
does it mean it’s ok to
use?
The Library displays jpegs and
tiffs offsite for those images for
which a rights analysis shows:
- that there are “No known
restrictions,” OR
- that the copyright has expired,
OR
- that the creator has released
his rights OR
- that the creator
has agreed to allow his images
to be
displayed but still retains
the publication
rights.
Examples:
- that the vast majority
of images in a large collection
are not restricted,
even though the rights
statement advises about select
cases
where
restrictions might apply;
with these collections,
no one has
ever successfully claimed
such rights.
Examples:
- Farm Security
Administration/Office
of
War Information Collection
- Theodor
Horydczak Collection.
While the overwhelming majority
of images that display jpegs and
tiffs off-site fall into the first
three categories, be sure
you haven’t
wandered into one of the few collections
in the fourth category. Moreover,
although the fact that jpegs/tiffs
display off-site may offer some
clues as
to the rights status of an image,
you will still need to make
your own
determination. As always, you need
to consider the rights issues, incuding
copyright, privacy,
publicity and
related rights in light of your
intended use.
Top of Page
4. How should I credit the Library
as the source of the images I’m
using?
When material form the Library’s
collections is reproduced in a publication
or website or otherwise distributed,
the Library requests the courtesy
of a credit line.
Ideally, the credit
will include
- reference to Library
of Congress, and
- the specific collection
which includes the image,
and
- the image reproduction number
(negative, transparency,
or digital id number).
Such a credit furthers scholarship
by helping researchers
locate material
and acknowledges the contribution
made by the Library of
Congress.
Example:
Wright Brothers collection, Prints & Photographs
Division, Library of Congress, LC-ppmsca-04598.
When space considerations preclude
such a caption, shorter versions
may be used.
Examples:
- Courtesy of the
Library of Congress, LC-USZ62-13459
- LOC, LC-ppmsca-09756
- Library of Congress, C4-2356
Top of Page
5. I really want to use an image,
but I can’t tell for sure
that it’s ok to use. I
don’t
want to land in jail. What’s
the worst that might happen to
me if I decide to go ahead and
publish it?
The Library is aware of a few cases
where a user was told by someone
claiming to hold the rights to
images in the Library's collections
to “cease
and desist” publication
of the images. When the users requested
proof of rights ownership, however,
the matter was dropped.
The Library is unaware of any lawsuits
involving the use of its historical
images.
To establish a prima facie case
of copyright infringement, the plaintiff
must prove "ownership" of
copyrighted material and "copying" by
the defendant. (Norma Ribbon & Trimming,
Inc. v. Little, 51 F.3d 45, 47 (5th
Cir. 1995) (citing Lakedreams v.
Taylor, 932 F.2d 1103, 1107 (5th
Cir.1991). A plaintiff establishes "ownership" by
demonstrating that the material
is "copyrightable" and
that he complied with the statutory
requirements in securing the copyright.
Central Point Software, Inc. v.
Nugent, 903 F.Supp. 1057, 1057 (E.D.
Tex. I995).
If it is difficult for you to find
a rights holder after employing
due diligence, it ought to be equally
difficult for a claimant to show
that a copyright had been secured.
The U.S. Copyright Law is available
online at: http://www.copyright.gov/title17/circ92.pdf [pdf].
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