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:

1. What do you know about the rights associated with the image? [more about this]
   and
2. 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:

• An associated catalog record (text giving data about the specific image) in the Prints & Photographs Online Catalog? [more about catalog records]

• A rights and restrictions statement giving information about rights? [more about rights and restrictions statements]

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

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).

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]

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:

• Circular 1, Copyright Basics
• Circular 15, Renewal of Copyright
• Circular 15a, Duration of Copyright
• Circular 15t, Extension of Copyright Terms.

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

• 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]

  ---

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.

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:

1. that there are “No known restrictions,” OR
2. that the copyright has expired, OR
3. that the creator has released his rights OR
4. that the creator has agreed to allow his images to be displayed but still retains the publication rights.
   Examples:
   • William C. Brumfield Photograph Collection [view rights and restrictions statement]
   • the William P. Gottlieb: Photographs from the Golden Age of Jazz available on the American Memory site [view rights statement]) OR
5. 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.

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.

• Courtesy of the Library of Congress, LC-USZ62-13459
• LOC, LC-ppmsca-09756
• Library of Congress, C4-2356

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].