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Guides to Photo and Document Preservation and Sharing for Families and Community Historical Societies

Copyright Considerations When Sharing Images

By R. Anderson - 5/2009

Copyright law is complicated and should not be taken lightly. However, some rules are clear and these provide significant latitude to pursue many photo and document preservation and sharing projects.

Please note that I am not an attorney. Therefore, the following should not be taken as legal advice, rather as a consolidation of readings on the subject. In this article, I provide links to a few additional copyright law summaries on the internet, including a link to the U.S. Copyright Office and their brochure on Copyright Basics.

I strongly advocate respecting copyright protection when any use of an image might impair the value of a work or a copyright owner's commercial interest.

There are many historical works that were never subject to copyright or the copyright protection has lapsed with the passage of time. Many of these images are eligible to be shared with no restrictions, and in many cases the original owners would likely be pleased to know that others are still finding uses and enjoyment in the images.

Copyright law is primarily intended to protect the value and commercial interest of a copyright owner. Therefore, rules concerning the use of images and copyright protection center on the following two questions:

1. Is the "work" currently protected by copyright? - Although copyright law has changed and become more complex over time, there are "works" produced in large chunks of identifiable periods of years that are not subject to copyright protection, even if they once were. If a photo, document, or other image is not protected by copyright, it is in the "public domain" and you are free to copy, distribute, and even sell the image.

2. If the work is copyright protected, would the use impair the value of the work or the owner's commercial interest? - Copyright law is in place to provide protection and remedies to copyright owners who feel harmed. If there is no harm, there is little reason for the copyright owner to be upset and seek legal remedies in the form of a copyright infringement suit.

Some Possible Scenarios

When you take a picture today at a family reunion you technically become a copyright owner of the image. However, it is unlikely that you would sue a relative for infringement when they use the emailed image in a family photo book. You will more likely be pleased that your image was included. In the same way, if a historical society is gifted a collection of family or community photos, it is likely that they are intended to be displayed, and to perhaps benefit the community in other ways the society may choose to use them.

When in doubt, it is often easier to obtain permission than forgiveness. In the case of donors to a historical society, or family member photos, permissions to use images broadly are normally readily available. In most cases, the owner is flattered to see the work shared and used for the enjoyment and benefit of others.

Other Scenarios

● If an image is copyright protected and has meaningful market value that is being actively exploited in a commercial way, it is more likely that a use of the image without permission will attract legal attention in the form of an infringement suit.

● If an image is clearly copyright protected and the commercial value of the image is modest, it is unlikely that non-commercial use would attract legal attention. A lower value also means that obtaining permission to use the image is probably easier and perhaps without cost.

● If the copyright status and commercial value are both unclear, common sense should be applied by balancing the importance of using the image, the nature of the use, and the extent of any possible harm to an unknown copyright holder.

Works, including photographic images and documents are either copyright protected or in the "public domain". Public domain documents are free to use without permission. Public domain "works" may be reproduced, printed, displayed, shared, distributed, and sold. For more background on public domain visit The Stanford University Library site.

Two major categories of works are clearly in the public domain.

► 1. Works Published in the United States Prior to 1923 With or Without Copyright Notice - Copyright protection is expired (if it ever existed) on anything published in the United States prior to 1923.

► 2. Works Published in the United States Without Copyright Notice Between 1923 and 1977 - According to the U.S. Copyright Office, "Before 1978, federal copyright was generally secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. U. S. works in the public domain on January 1, 1978, (for example, works published without satisfying all conditions for securing federal copyright under the Copyright Act of 1909) remain in the public domain under the 1976 Copyright Act. "

You can see a useful table presentation of the above categories at a Cornell University web page indicating which works are in the Public Domain. If you visit the Cornell site, focus on the first two categories under "Works First Published in the U.S.". The rest of the table will start to make your head spin. For a bit more color, you can also take a look at the U.S. Copyright Office brochure on Copyright Basics.

If you can clearly date a "work" and it falls into one of the above two categories, you should feel comfortable that you are working with an image that is in the public domain. Useful evidence of the date of publication might include a postmark on a postcard, a publication date on a brochure, a dated studio photograph, or even a dated copyright notice that has expired.

The above two public domain categories include the term "published". It is important to note that copyright protection can apply to both published and unpublished works. The 1976 Copyright Act indicates that "Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication."

If an image does not fit within one of the two clear public domain cases, you should be more cautious in your approach. In this case, you should consider seeking additional information to clarify the extent of copyright protection and, if need be, information about the current copyright owner's identity. If it is not possible to identify a copyright owner to obtain permission, you may opt not to use the image or you may consider the degree to which the use of the image might cause harm.

There are many situations where common sense should prevail. For example, a deceased relative may have taken a remarkable landscape photo in the 1980's and they had given you a framed copy. You now decide that the photo is worth sharing and you include it among other landscape photos you are marketing. Unless you technically inherited the rights to the image, this would constitute copyright infringement since the copyright in the "unpublished" work still exists. The question becomes one of who might be financially harmed, to what extent, and whether they even care about the use of the image. When in doubt, it is wise to seek clarification of ownership and permission to use the work.

Fair Use Concepts

Copyright law has developed to include a concept that certain copying of works without permission is "fair use". The definition of "fair use" is not perfectly clear in all instances as it is intended to cover a multitude of media and situations. The concept of fair use is not available as a clear exception to copyright law. Rather, the concept serves as an available form of defense in the event a copyright owner files a suit for copyright infringement.

Only a court can decide if a use is within a range of four criteria that are used to describe "fair use". The four criteria used by courts to consider a defense of fair use are:
1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market

The last consideration is probably the most important, as copyright suits normally center on protecting value or income. If there is no market, or a very small market, it is unlikely that anyone should or would feel injured to the point of a lawsuit.

For a more detailed discussion of "Fair Use", see information provided at the Stanford University Libraries. Notice in the index to fair use topics a section (B) discussion of the four factors, and a section (D) that discusses circumstances that increase and decrease your chances of being sued for copyright infringement.

Preservation Copying Debate

Copyright law contains some protective exceptions for libraries, educators, and "archives". The reproduction exceptions granted to libraries and archives are quite restricted in types of eligible materials, and apply only to preservation activities. The preservation copying exceptions apply primarily to items that are out of print, at risk of loss, not replaceable at any price, for research, and other limiting criteria.

I mention these exceptions since they appear to reflect a growing recognition of the need to copy items at risk for the "public good", and when not being reproduced for profit. These exceptions appear to help preservationists in building a case that duplication for preservation purposes may qualify as a "fair use". In any case, common sense would suggest that preservation related duplication activities that do not generate a profit and do not deprive anyone else of making a profit are unlikely to draw legal attention.

Divisible Copyright Rights and Permissions

In recognition that a copyright owner may wish to control distribution and display in certain ways to maximize a financial return, copyright law covers several separate rights that can be marketed, sold, and transferred individually or in combination.

These include:

1. Reproduction rights
2. Distribution rights
3. Rights to create adaptations
4. Performance and Display rights

The copyright owner may sell these rights separately or in combination to maximize business results. A classic example is the motion picture industry, which will sell rights to theaters to "display" a motion picture for certain periods of time, sell distribution rights in different parts of the world, followed by DVD reproduction and distribution rights, followed by television rights, etc.

It is possible for copyright owners to "license" some of the rights on agreed terms or to "assign" all rights to a work to someone else.

Copyrights and Family Photos and Documents

If you are an individual working with a collection of family photos and other family generated documents, you typically have little to be concerned about, as you probably own the rights to most of the photos and documents and/or there is little commercial value in the images.

If your project includes documents published by others, such as postcards, newspaper clippings, and perhaps studio photographs, you should be cautious about the use to which you put the images. The reproduction of an image published by someone else may technically "infringe" on someone's rights under copyright law. However, it is unlikely that anyone will feel "damaged" unless you use the image to seek some form of gain.

For example, in the case of a studio photograph, the studio's commercial interest in the image is the potential sale of additional prints. Therefore, an indication of a studio's copyright will most often prevent a local copy shop from providing a copy or scan.

Note that the studio photographs appearing in this website are all dated prior to 1923. Although I have not done the research, I suspect that most or all of the studios are out of business, and the owners of the studios at the time the pictures were taken are deceased.

Historical Society Photos and Documents

In the case of community historical societies, members can often identify the source of collection images, and an effort can be made to obtain permission to use copyrighted images as the need may arise.

An even better habit to form is to clarify any copyright ownership and possible assignment of rights when collection donations or acquisitions occur. If a historical society can effectively identify which of their images are in the public domain and any rights or permissions associated with copyrighted images, the society has much greater flexibility in finding creative ways to share collection images with the community.