"How To" Guide > Sharing Images > Copyright Issues
Copyright Considerations When Sharing Images
Copyright Expirations and Public Domain (continued)
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 It is important to note that copyright protection can apply to both published and unpublished works.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.
