Submission Date:
Question:
An academic librarian relayed this question from a researcher/author:
"I am in the stage of tracking down photo permissions and have found images originally published by U.S. presses from the late 1800s and early 1900s (1887, 1893) that are now defunct--hence I cannot request photo permissions from them. The images are posted online by historical societies, but I'm not sure if they're in the public domain or not. I plan to reach out to the society publishing the images on their digital archives, and credit them for using the images, but is there any other factor to consider?"
Answer:
First, some validation: the faculty member is wise to be considering this issue, since publishing contracts[1] almost always put the responsibility and liability for photo clearances on the author.
In this case, there are several layers of copyright ownership to consider: the original copyright of the photographer, the copyright of the books, and the copyright to any re- publication by which they are being made available (for instance, a digital archive).
Because of the publication dates (1887, 1893), the original copyrights (for the photograph and the original book), are most certainly expired.[2] The only concern would be if the images were somehow used to create a work with a "new" copyright...for instance, if the picture of the long-dead person was enmeshed with a picture of Janelle Monae on a rocket ship to Mars...which isn't the case here.
So, while in the law game there is a rule of "never say never," based on the dates, the images in this question should be free from copyright. That said, as contemplated by the question, it is almost always a good idea[3] to extend a "courtesy acknowledgement" to a historical society, library or other archival resource that stewarded the image so it could be used for research.
Even more important when using a digital source, however, is first confirming, and documenting, that the image isn't being taken from a website or repository in violation of any of their "terms of use" conditions. Written confirmations from the archive, or keeping a screenshot of the "terms of use," image information, and metadata, are all good ways to do this.
Other risks of using old photographs for commercial publications are: the possibility that the image is being used as a trademark, and the possibility that the re-publication could make commercial use of images of deceased "personalities." These should both be ruled out before publication.
In addition, when using a photo--especially for publication--it is a good idea to confirm that there are no ethical or relational concerns with using certain images.[4] For these reasons, writing to the historical societies to inquire about images kept in their collections (as the faculty member in this example is doing) is a good idea...just ask for information, not permission. Checking in with a person who focuses on ethical issues in that particular area of scholarship is wise, too.
[1] This is something "authorlaw.com" attorney Sallie Randolph and I often bicker about. I advise writers to resist such clauses (or demand better royalties for taking on the risk). Sallie, who has negotiated hundreds of author contracts, tells me this is not realistic advice, because for most major publishes, it's non-negotiable. But as I see it, everything in a contract is up for negotiation!
[2] A good resource for double-checking the date when works are in the "public domain" (which can vary) is at https://guides.library.cornell.edu/copyright/publicdomain. Thank you, Cornell.
[3] I discussed this part with Sallie Randolph, too, and for once, we agreed! When contacting an organization about a public domain image, never ask for permission, but say something like "I am contacting to discuss using a public domain image from your [archive] to see how you would like the organization credited for having made the image available to researchers."
[4] For more on that, see "Ask the Lawyer" RAQ 172.
Tag:
Academic Libraries, Archives, Copyright, Liability, Photographs, Public Domain
