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Art Filled Days » Copyright, Royalties & Public Domain Images

Copyright, Royalties & Public Domain Images

free-online-imagesImage use is perhaps one of the most talked about topics across the web. Whether you are an experienced webmaster, scrapbook enthusiast, photographer or artist; image usage rights impact everything you do. The problem is bad and misleading information seems to outnumber the accurate.

Just the inclusion of the word “FREE” does not mean something is absolutely free to use however you wish.

The Disclaimer

Before we go any further…I am not a lawyer. The information shared here is based upon my own research and comes from running several image-related websites featuring public domain images for over 6 years. I will share the laws, as I understand them, and how I approach image use. I am a big fat coward and I would rather not use an image than risk someone suing me. When in doubt don’t use an image is my approach. This article is written by me, an American, so it may not be 100% applicable to residents of other countries.

Free Image Hosts

deviant-artFree image hosts are not, were they ever, intended to be places for people to obtain photos to use for their own purposes without regard for copyright. Free image hosts, like Flickr and Deviant Art, are designed as places where people can upload and share their photos, drawings and ideas.

Problem is, people see the words ‘free image’ and somehow twist that into, “a place slam full of pictures that I can use however I wish”. Most creative works on free image hosts are protected by copyright!

On sites like Flickr and Deviant Art, each user owns the copyright to their work. The artists should indicate if the image is free to use, free to use with attribution or licensed under Creative Commons. More and more public domain images are being added to Flickr but you simply cannot assume that everything there is yours for the taking.

Purchasing Public Domain Image Resources

There are a number of companies offering public domain image collections for sale. All I can say is tread carefully and pay attention to who the seller is.

Most of the folks offering vintage image collections are selling public domain images as “royalty free images.” What that means is that they are trying to claim copyrights to the images by limiting the use of “their” images. I have no idea if they would be able to legally defend such claims but, I wouldn’t want to be the one to have to hire a lawyer to find out. I think they are on shaky ground, but again, I’m not a lawyer.

Another thing that you have to worry about is that the image collection may include pieces that are actually still under copyright protection. Too many folks working with vintage images are under the mistaken impression that if something is old, it must be copyright free. That great collage sheet, gift tag collection or other vintage printable being sold on Etsy or eBay could get you sued for copyright infringement if you used the wrong image in a public setting.

You have to hope that the vendor did their homework. You have to assume that everything is indeed in the public domain.

Stock Images Often Have Limitations

stock-imagesStock images are usually offered for sale or for free with a defined set of usage instructions. Anyone can buy/use them and therefore you will not get exclusive use of them. You have to carefully read each company’s terms of service to know how you can use their images.

Common restrictions include:

  • Non-commercial use only. That prohibits you from selling something that incorporates that image or using that image as a way to sell something else. Even if it is for a blog article that might make you a dollar or two a year, most consider that commercial use. Read the terms carefully, as some sites are permitting limited commercial use on websites.
  • Personal use only. This generally restricts the usage to things where the image will be seen by only a few people and not be used in any way to make money. Personal use only may limit usage of the image to school projects or personal, offline projects. Or, personal use may mean that the images can be used online but only on sites not generating revenue. It’s best to email the source and get them to clarify how they define personal and commercial use.
  • Non-transferable. This generally means that you alone can use the images and may not give, trade or resell them to someone else.
  • Advertising & Promotional Projects. Some stock image sites will not allow their images (free or paid) to be used in product packaging, logos, brochures, postcards and a number of other uses. However, some provide a secondary level of licensing for this type of use. Fair warning…if advertising and promotional use is extra, it is going to be expensive…trust me.
  • Web Templates. Image usage agreements that mention web templates are generally referring to templates and themes meant for resale. For the most part, including the image on your own site, even as part of the site design is acceptable. Read this section of the terms of service carefully or email for clarification if at all in doubt.
  • Morals Clauses. Many of the stock photo sites include a prohibition on using their photos, drawings or images in an unlawful manner or in a way that would bring the materials into disrepute.
  • Resizing & Other Editing. Some stock image sites limit how the images can be resized, cropped or edited. I generally avoid any site with this sort of rule. If my site design only allows for a picture 250 pixels wide, I shouldn’t be forced to redesign my site or pay extra if their photos are 300 pixels wide.
  • Reproduction Limits. Generally refers to physical uses of the image, as in you can only print x number of flyers using this image. The exact number should be contained within the terms of service. For most of us, we would never need more than 500,000 pieces that incorporate a single image. (the limit on iStockPhoto.com).

photo courtesy of morgueFile user clarita.

Royalty Free

not-free

Royalty free is an often misunderstood term. It is not the same thing as copyright free in any way shape or form.

Royalties are fees paid to the original creator of something each time their work is used. You might have heard about actors and actresses getting paid each time a television show airs. When it comes to images, royalties follow the same concept.

Most of the popular stock photo sites are offering the images Royalty Free. That means you do not have to pay extra for each time the image is seen. Could you just imagine using an image on your blog and having to pay the stock photo site or photographer every time someone visits your page? Multiply that times several images on each article by however many articles or websites you have and suddenly you will be facing a big fat bill.

This is one of those big gotchas. Google seems to have some trouble with royalty free images vs free images. You have to be careful when searching for just free images. A lot of the royalty free image sites come up and while you don’t have to pay for each use, you will most likely have to pay a license fee of some sort to use the images or photos.

While that’s not a bad thing to pay for just the right image, I think it is somewhat dishonest to advertise that you have “free images” when, in fact, you are selling “royalty free images”.

Model Releases

shadowWhenever a person is included in a photo, even if it is just their hands or feet, they need to sign a model release for the photographer to publish that photo. Most professional stock photo sites deal with the issue of model releases for you.

While it is rare for someone to push this issue, the law is clear…you must have a model release to commercially use a photo that contains a person or parts of a person. More than one person? A model release is required from each of them.

This is one area that makes the free stock photo sites risky. From a purely legal point of view, you would need to know if the photographer had a signed release on file to ensure you won’t run into any problems using the image. Even if the photograph is of the photographer or their child, theoretically you would need a release from them. I generally avoid using any photos with recognizable people in them for this reason. It’s just a risk not worth taking.

photo courtesy stock.xchng user Hugo Humberto Placido da Silva.

Copyright

the-law

photo courtesy of stock.xchng user Jason Morrison.

Copyright law is intended to allow the creator of a work to control who profits from their work. They can completely prohibit the use of the work by anyone else, grant limited use or gift their work to the world for use by anyone. Granting unlimited use, does not however, mean the same thing as releasing their copyrights.

Interestingly enough, virtually every country in the world, provides some form of copyright protection for original creative works. The lone exception that I found was the Marshall Islands where there is no known copyright legislation.

What is Copyright?

Copyright is a legal term. It boils down to this…while something is protected by copyright, only the original creator can say how their work may be used.

When is something given copyright protection?

As soon as it is published. However, in order to defend a copyright against infringement, the work in question has to be registered. Copyright registration can be done after publication.

Fair Use

Fair use is one of the most misunderstood and abused aspects of copyright law. The exact wording of the law varies from country to country and some may not even allow fair use.

The short version of fair use is…someone other than the copyright holder may use part of a copyright protected work under a limited amount of circumstances.

It is in defining those circumstances where people get into trouble. For the most part, fair use was intended for commentary and criticism. For example, you could include limited passages from a book while writing a review of that book without obtaining the permission of the author.

It’s a tricky concept that has had lawyers tied up in reams of legal briefs for years. My suggestion is to be very careful. Generally, when it comes to image use, attempting a fair use defense puts you on shaky ground. My advice is if you have to worry about whether or not your use of the image would fall under fair use, just don’t do it.

This article from the Stanford University website discusses Measuring Fair Use but again, when it comes to image use…discretion is the safest course of action.

How long does Copyright last?

This is another thing that varies from country to country. Most countries provide the creator of a work with full copyright for their natural lifetime plus a number of years after death. The years after death range from 25 to 100. Most countries provide 50 or 70 years of additional copyright protection for the heirs or designated assignees of the work’s creator.

What is Berne?

In 1886, a number of countries met in Berne, Switzerland to discuss copyright law. Author Victor Hugo (he wrote Les Miserables), instigated the Berne Convention for the Protection of Literary and Artistic Works. At that time, a creative work written and published in France could be republished in any other country without having to pay the original author because the original copyright only applied to the country of origin. Copyright law, before Berne, also required the registration of a work for it to be protected by copyright.

As it became easier to travel between countries and printing costs were declining, it became more and more obvious that the laws had to protect works as they traveled outside of their country of origin.

The Berne Convention sought to provide a standard copyright policy that every country could adopt. Needless to say, not everyone was originally on board. There would be several ‘conventions’ and meetings before the treaty would be in its current form. It would be 100 years before England would adopt it fully (though there are some major exceptions) and the United States didn’t become a signatory until 1989.

Those countries participating in the Berne Convention have agreed to honor the copyrights of authors and artists from the other signatory countries in the same way it recognizes the copyrights of works produced within their own borders.

Berne Convention Copyright Terms

All signatory countries are free to extend the terms but agree to a minimum guideline that provides copyright protection for at least 50 years after the death of the work’s creator. If the creator is truly unknown, the term is 50 years after publication.

In the case of where countries may provide longer terms of copyright, the creator’s home country takes precedence. Meaning, that an author’s heirs from a country that is strictly following the 50 years after death calculation cannot expect 20 additional years of copyright from the United States where they follow a 70 year after death term.

Creative Commons

creative-commons

OK, here’s where I shrug my shoulders and admit that I don’t entirely get this one.

Creative Commons is a primarily web-based initiative designed to allow artists to offer others the ability to use their work under a “reasonably flexible copyright”. The original artist maintains their copyright but allows others to modify and use the work as long as proper attribution is given.

There are six different license options available under Creative Commons, all of which require that you post the appropriate nod to Creative Commons and the original artist.

My View on Creative Commons

I think by insisting that people tag these images as Creative Commons, that the original artist often gets pushed a bit to the side. The few times I’ve tried to research an image tagged as Creative Commons, I rarely could find the original artist.

I also think that more effort should be spent on getting the laws of the world updated to reflect the digital world we now live in. Creating a new set of copyright rules that may or may not be legally defensible just adds to the confusion.

I understand the concept of trying to maintain a way to share images online but I think it has just added a level of complexity to an already confusing issue. As there is no central repository for the creative works labeled as Creative Commons, there’s no way to be sure that the person licensing the image is the actual copyright holder. There’s also no way to verify that the correct license has remained attached to the work. Without the assignment of some sort of identification numbers to the images, I just don’t see how this can protect the images and the artists.

To me, Creative Commons also dilutes and confuses the laws regarding derivative works – those works using another work as a foundation.

In the end, I tend to avoid anything labeled Creative Commons, with the exception of Wikipedia, and even there, I’m very cautious – particularly after I discovered some of their volunteers are literally scraping Flickr and other sites and placing the harvested images on the Wikimedia site. I would encourage anyone who uses that site to click through to the original source and make the appropriate attributions link to the original compiler or creator of the image.

I generally see Creative Commons works as just not worth the risk. Remember, I’m a big fat coward about copyright and I would rather spend some more time looking for the right image than risk causing headaches for myself down the road.

Free Stock Photo & Graphic Images Sites

stock,xchng

I love free stock photo sites. My favorite is stock,xchg. There’s so many talented people being oh-so-generous with their work. My sites would be so boring without their wonderful photos and graphic images. That said, there are some risks to using these sites and some things you have to pay attention to.

Half-free Images

I’m of the opinion that if you post your photographs and graphic images on one of the free image sites, that they should be 100% free. The thing I don’t like about stock.xchg is that it allows the contributors to request/require notification of when the images are used. Either you’re making the image free or you’re not. Pick one.

While I suspect most folks just drop a short note right on the site to these folks, I just don’t use their images. Maybe it’s a personal protest sort of thing but I just don’t want anyone to email saying, “Hey, you’re using my photo from stock.xchg and you didn’t ask me first.”

Who really owns the image?

This is the inherent risk of using any photographs or graphical images you find online…is the person saying it is their work actually the copyright holder? I’ve seen people take free stock images, claim them as their own and try to sell them on a stock photo site. Conversely, I’ve seen people take stock photo images being sold and offering them on the free image sites. There’s cheats and thieves all over the web. Sadly, it’s part of the digital world we live in.

Mitigating the Risks of Free Image Sites

Again, I tend to err on the side of caution. When it comes to free image sites, I stick to those that are dealing with public domain images or are older and larger sites.

While this is just my personal feelings on the subject, if stock.xchg or one of the other larger sites continually contained photos which breached other people’s copyrights, they would have been sued into oblivion no matter how much they say it is the user’s and not their responsibility.

Free image sites can garner a large amount of traffic. Any one can launch one with just a domain name and some cheap hosting. There are places where folks are buying lists of pictures, putting up a site in a few hours and making money with them. Problem is those pictures are very often not in the public domain. Same goes for wallpaper and background sites.

If the site has recognizable and trademarked cartoon characters, hit the back button fast. If you want to use Micky Mouse, you will have to pay big – like 7 or 8 figures big, probably more. Same goes for all of their other characters. If you are not in some way licensed to use that image, Disney will find you and send you a very threatening cease and desist order. Be on the safe side and find something else to talk about or only use photos of things found in your own home.

Public Domain Images

As I mentioned previously in the copyright section, copyright provides the creator of a work and their heirs, exclusive rights on the use of that work. Once that copyright expires, the work falls into the public domain. A public domain work can be used by anyone however they wish. There are three exceptions, but we’ll get to them later.

Determining if a work is in the public domain, at least in the United States, can be a bit tricky. Again, I tend to err on the side of caution.

Publication + 120

If the creator of the work is unknown, the copyright lasts 120 years after publication. I’m not sure if every country in the world follows this standard but from what I’ve seen, most do.

Again, there’s a small bit of ambiguity here. If a magazine published a drawing without giving the artist specific credit, it would normally be classified as a work for hire and therefore would fall under the publication + 120 classification.

I hesitate however, when the drawing has a clear signature or artist’s mark. After all, would the law consider it giving credit to the artist by allowing the artist to include their mark? I believe I am on safe ground in still identifying it as public domain, but I generally mention the artist (if known) and/or the mark on my public domain image site – in other words, I leave it up to my site’s visitors to determine how they want to proceed.

Death + 70

If the name of the artist is known as well as their date of death, that’s where determining if something is in the public domain is easy. The only trick is knowing that the copyright extends for the entire year of the anniversary date. Meaning that if the person died in July of 1930, their work remained under copyright until 2001 (1931+70).

If I know the name of the artist but not their date of death, I generally practice a bit of common sense. If the work was published in 1820, it would be highly unlikely that the person was still alive in 1943 (2014-71). [I generally use 71 in my calculations to allow for the full year aspect of copyright law.] Some sources just revert to the publication + 120 aspect of copyright law when the artist is known but their date of death is not. The risk there is that I have seen several cases where the work was published over 120 years ago, the artist was young and lived into the 1950s or even 1960s.

If it is possible the creator could have been alive in 1943, I keep looking.

What’s so special about 1923?

Under American copyright law, works published before 1923 are in the public domain regardless of who created them and when they were first published. It is a provision of copyright law unique to the United States and is not observed any where else in the world.

Americans, who use public domain works based upon the 1923 aspect of copyright law, should tread carefully if their work will be sold or distributed in another country as the other country may still consider the work under copyright protection.

Failure to Comply with Copyright Law

Another odd bit about American copyright law pertains to works published between 1923 and 1977. These works were required to have a copyright notice. If a work was published during those years without a copyright notice it is now in the public domain.

Renewal Required

Still more peculiarities about American copyright law relates to a window of publication that required copyright renewals/registration to preserve copyright. Though the dates and requirements vary, creators of works produced with a copyright notice after 1923 had to renew their copyrights to retain them.

This is, in my humble opinion, one of the most idiotic things we could have done. Many believe much of American copyright law, including this aspect, were done in effort to protect the Mouse – Mickey Mouse.

Before using works published after 1923, one has to comb the archives of the US Copyright office to determine whether or not a renewal was requested and granted. You can go to the archives in Washington, DC yourself or pay, by the hour, for someone to do the search for you. There is no set fee and I could imagine paying someone could get very expensive quickly.

This also creates additional confusion in that it begs the question which takes precedence? Death + 70, publication + 120 (when we get to 2043), or the 95 year extension that was granted to those works which were renewed?

My approach, based on some research and what would seem common sense, is to apply a + 70 approach to works published after 1923 in the United States. It may or may not be the ‘legal’ answer to the issue so if you are in doubt, it might be better to either do the research or find another image to use.

Beware of Bad Information

postcardMany sites are publishing entire books, magazines, images from postcards, images from greeting cards and other creative materials. Unfortunately, many are incorrectly claiming those images are in the public domain.

Many are assuming that if the work was minor that the publisher didn’t bother filing for renewal. I most commonly see this assumption being made with post cards, greeting cards and arts and crafts booklets.

American Post Card Images

There’s been a persistent rumor that vintage post cards are all in the public domain. Two problems here…there’s no standard on what year of publication begins the ‘vintage’ era and it is based on a very big assumption. The assumption is that the post card either did not include the required copyright notice OR they didn’t re-register the work OR they simply didn’t register the work in time.

Many of those charming holiday images on vintage sites may actually still be protected by copyright. Unless the site owner includes the entire post card where it is obvious there was not copyright notice or they include the publication information…I don’t touch them.

Again, this falls into the just not worth the risk category. {Of course, between you and me, if you plan on using the image only for personal use, it would be highly unlikely that the copyright holder (if one exists) would ever find out about your infringement.}

Arts & Crafts Booklets

Many arts and crafts-related companies offer small booklets or magazines with patterns, projects and ideas. These materials are either sold, offered by mail or given away in the stores or within the product packages.

I’ve found the publication of this type of material dates back well into the 1800s. But, it seems to have become quite popular during the 1940s, 50s and 60s. These ‘vintage’ pieces are being posted all over the web based on the incorrect assumption that they are no longer under copyright.

The publishers had to register these works in order for the copyright to be maintained. Most of them didn’t bother doing so. Some did. Without contacting them directly and getting lucky enough to find someone willing to talk to you who actually has the authority to do so, there’s no way of knowing if these works are truly in the public domain. Or, you could probably dig through the archives in Washington and hope you could find a piece with a vague title like “Doilies #10” by DMC…good luck with that.

To make matters worse, there are many folks who are scanning these works and selling them as their own – totally illegal, if the works remain in copyright.

Again, this is one of those places where I tend to recommend determining your own level of risk and whether you want to pay someone for something they may have stolen.

If you plan on using the patterns or images for personal use…who’s going to know one way or the other? I tend not to use them as I don’t like supporting the careless or outright theft of these materials.

If you plan on any other use of the patterns or images, I would strongly encourage you not to do so.

Marketing vs Copyright

I suspect the reason so many companies like DMC, Bucilla and the others tend to look the other way with this sort of copyright infringement is the advertising and marketing value of allowing these pieces to essentially fall into the public domain is better for them than getting nasty with their customer base.

While it appears to be something they do not enforce, I wouldn’t want to be the one they do chase for infringement.

public domain postcard provided by Free Vintage Art. (larger image available from source)

Image Search

searchOh how I hate what the search engines have done by indexing images. People around the world “search Google” for images to use. They seem to think that anything they find there is free to use.

Sure, the search engines put warnings that some images may be under copyright. But, they’re easy to miss and usually overlooked.

My advice is that if you don’t want to risk being sued, NEVER, EVER use the image search feature of Google, Yahoo or Bing to find images for your own projects. Just don’t do it. It’s wrong and it’s not legal, no matter how many people tell you it is.

Linking Back Doesn’t Count

Oh, and linking to the source does not somehow negate their copyrights. Unless their site says you can use their images with a link, you need to get their permission. Period. End of story!

photo courtesy of stock.xchng user Ove Topfer.

Digital Millennium Copyright Act (DMCA)

OK, can I say I love the Digital Millennium Copyright Act? It’s a complicated piece of legislation that has far-ranging applications. It has good points and bad points. For me, it has provided a way to protect some of my copyrights without having to hire a lawyer and file a lawsuit. It doesn’t take that right away, it just provides an alternative avenue or first step to stopping online thieves.

The DMCA is an American law, though a number of other countries are adopting similar measures or honor the spirit of the law. It’s most misunderstood and complicated aspects involve the responsibility of service providers when it comes to their users infringing upon someone else’s copyrights. Once notified of infringing content on their servers, they too can be held legally responsible and sued by the owner of the work in dispute. My experience is that many webhosts are erring on the side of caution and pulling anything they receive DMCA complaints on if the accusation is fairly well documented.

The super, duper short version of what DMCA allows and how it pertains to web content:…if I post my original work online and someone else uses part or all of it without permission, I can send them and/or their webhost a ‘DMCA takedown notice’. Assuming the accusation is supportable, the site owner must remove the offending content. If the site owner fails to act, the complaint can be escalated to the service provider.

Facebook, Yahoo! Answers, MySpace, WordPress, Blogger and most of the other user-generated content sites have strict policies regarding copyright infringement and post their policies on reporting infringed content and/or filing a DMCA complaint. And, I can assure you that if you post stolen materials on one of the sites I mentioned, it will be removed. I have filed complaints with all five of those providers and I was impressed how fast they removed my stolen content.

Image Use & the DMCA

What DMCA means for image use is that the photographer or artist does not have to sue you for copyright infringement. They can utilize the DMCA to demand you remove their material from your work. If you do not remove it, they can then contact your webhost and demand they remove it. As a rule, the webhost won’t mess around with just deleting the images off of a page, they’ll remove the entire page.

Ugly New Trend

There’s at least one self-hosted, community-driven site that is ignoring DMCA notices from individuals. (I know because I’ve sent them one.) Apparently, they are assuming their size and the costs associated with hiring an intellectual property attorney will keep people from fighting back. At the moment, I am still debating what I am going to do about their theft of my content – I have three years to decide if I will sue them.

There’s also a particular webhost that is becoming known for also ignoring DMCA notices. Unfortunately, their servers have become a bit of a haven for content thieves. Hopefully, their days are numbered as one would hope sooner or later one of their users is going to steal from someone who has the resources to hire attorneys and get them shut down.

DMCA Abuse

There have been numerous abuses of the DMCA and takedown notices. There are entire sites dedicated to protecting people against larger companies and competitors who are using DMCA as a way to stifle creativity and redefine fair use.

That is an entirely different issue beyond the scope of this article.

Just keep in mind that there are legal ramifications for filing a false DMCA infringement complaint.

Public Domain Exceptions

laws

Compilations

A compilation of public domain works is copyrightable. The act of selecting, compiling and presenting the works creates, in effect, a new work. While individual items within the collection still remain in the public domain, in many cases, the collection as a whole becomes owned by the person who compiled it.

This area of copyright law is unfortunately one where the laws are not as clearly defined as they should be and have not kept up with changes brought by the Internet. The same case can often be quoted by parties on opposite sides of the issue as supporting their argument. I’ve been learning more than I ever hoped to about copyright law of compilations and databases after one of my sites was scraped and re-posted on a much larger site. I may update this section in the future but for now, just keep in mind, the law was intended to protect collections of public domain materials and prevent their use without the permission of the person who created it.

British Law

Two of the most notable exceptions to copyright law involve England. The first is Peter Pan. J.M. Barrie bequeathed all the rights to the Great Ormond Street Children’s Hospital in 1929. All royalties from the work were collected by the hospital. When he died in 1937, the clock started ticking on how long the hospital could enjoy what would become a “substantial” revenue stream. Since 70 years have now passed after Barrie’s death, the copyright protection enjoyed by the hospital has come under question. England has extended the rights but other countries are claiming they have since expired. Officially, in the US, the copyright expires in 2023 – a date not explained in any source I reviewed.

This is one of those things where I have opted, in my own work, to honor the intent of the original creator and to not use any of his work related to Peter Pan. Additionally, since so many of the images related to Peter Pan are from Disney films, I tend to avoid them as well – I avoid all things Disney – they definitely fall into the it’s just not worth the risk category. Besides, Walt Disney died in 1966 which would place virtually all of his work under copyright until 2037.

Photos of 2-Dimensional Works

Here’s where copyright law gets really messy and we have England and a number of European countries to thank for this. In most of the world, a simple photograph or mere scan/photocopy of a 2-dimensional public domain work cannot be copyrighted by the photographer or scanner. In England and a small handful of other countries, such mechanical or non-transformative copies of public domain works can indeed be copyrighted.

It is believed that a number of UK Museums pushed for this law in order to essentially transfer expired copyrights to themselves. How it works…They do not permit anyone, other the museum staff, to photograph or scan public domain works in their collections. By ‘owning’ both the original and all of the reproductions, they have, in effect; essentially transferred the copyright to the museum for as long as they retain ownership of the original painting, drawing or photograph.

My advice is that if you are dealing with art that you know is housed in England, several of the Nordic countries, Spain or Taiwan that you may not want to use it in your own work; particularly if you are planning on selling it or placing it online.

When is Public Domain Not Free

Mere copies/photos of 2-dimensional works in the United States are not copyrightable. Yet, some institutions, libraries and museums are attempting to limit usage of their photos. Some are trying to claim their images can only be used for academic or personal use and charge fees for commercial use. Others are claiming that all usage is free but must include an attribution to them. Some are offering low-resolution images for free and offering a higher-resolution for sale. And still others are offering heavily watermarked (read utterly useless) versions online for free and requiring payment for usable images.

I admit to being slightly on the fence about this. After all, if someone takes the time to scan hundreds of postcards, maybe even edit them a bit and post them on a museum’s website, shouldn’t all of the work (sweat of brow in legal terms) count for something? It doesn’t by the way. On the other hand, the spirit of copyright law is to provide free access to everyone of public domain works. Under my interpretation of the law, the “collection” should be protected but not the individual works.

An announcement in August of 2013 from the folks at Getty Images was a bit misleading. Some in academia are proclaiming that they are offering thousands of images for free. Ah, but there’s a catch. You have to attribute each and every one that you use to Getty, even if the work is in the public domain. While money isn’t exchanging hands, it certainly isn’t free if it requires I link to their site or listing them as the source; particularly for something that under US law is supposed to be entirely free.

While I haven’t found any examples of American case law relating to these attempts at what amounts to copyright transfer, I generally avoid using any materials from these sites.

photo of law books by Gabriel Doyle.

Public Domain Image Resources

reusable-art

Rule #1 of Image Resources – Do Your Homework

To my mind, the only public domain image resources you can trust are those that include as much information as possible about the original source of the material. If a vintage image site says something is copyright free but doesn’t include original publication information, don’t assume that they know what they are talking about. I’ve talked to several folks running vintage image sites and many of them don’t understand the law. They are assuming that if something is old and they took a photo or scan of it and maybe did some editing that they are entitled to direct how the image can be used. Ironically, there are several major institutions operating under this false premise as well.

There’s a growing marketplace of folks selling prints and digital images. Do your homework before whipping out your checkbook. I’ve found digital images freely available online being sold on Etsy and Ebay. One Etsian has taken out of copyright images from one of my sites and has tried offering “professional quality printed” versions of them for sale. (There’s certainly nothing illegal about that but why waste your money on something you can make yourself with just a few clicks of the mouse?)

I’ve seen folks taking public domain craft patterns that are already available for free online, repackaging them a bit and selling them as vintage or their own original work. (Again, nothing illegal there but certainly not something I would want to invest my own money on.) There’s money to be made from all things vintage and that brings out the thieves and opportunists.

Public Domain Image Resources I Trust

 

Keep in mind, this is just a list of sites I trust for finding images and is in no way a complete list of places offering and claiming to offer public domain downloads.

Stock.xchng – photographers from around the world can submit their own photos or graphics and make them available for free use. Images posted here are generally free from restrictions though it is possible that someone could post photos they do not own.

morgueFile – this is generally my second stop when I can’t find what I want on Stock.xchng.

U.S. Government Photos and Images – it used to be easier to find materials through this site but there’s tons of great pieces here. Photographs taken and paid for with public monies are automatically placed in the public domain. However, some works, ‘owned by the government’, were not purchased with public monies and may remain under copyright protection. Most copyrighted works on government run websites are clearly marked. (Keep in mind, many other countries also place works funded with public monies in the public domain.)

One Search One Search is offered by the State Library of Queensland. It contains a wide variety of materials from the library’s collections. Not everything here is in the public domain but much of it is. Keep in mind if you’re looking for images to refine your search to limit the results to images. The site does work without logging in but does mention that you’ll gain greater access to some of the materials by signing up for a free account.

Vintage Images – Reusable Art is my site. It contains thousands of book illustrations, magazine images and other public domain works. Each piece is fully researched to ensure it is truly in the public domain before being posted. Original artist/author information is provided to honor the original creators of the works as well as provide relevant information concerning the age of the work.

The Famous Artists – This is another site of mine. It shares biographies of painters that focus more on who the artist was than providing an academic discussion of their work – I think it’s much more interesting to read a biography than a treatise on a particular painting style. Photographs of public domain works are provided with commentary often discussing the subjects, locations and historical importance of the work rather than focusing on technique.

Free Vintage Art – This is my newest vintage image site. It takes advantage of some of the more unique aspects of United States copyright law. It offers vintage postcards, fashion plates, book illustrations and other works that were published prior to 1923 or were not published with a proper copyright notice. It was launched in early 2013 and will hopefully continue to grow.

Yes, this is the banner from my own site. I’m obviously prejudiced, but it is my favorite free image resource.

Questions, Comments & Opinions Welcome

Keep in mind that I am not a lawyer nor have I had any legal training. I’m just a gal who runs a few sites that feature public domain images. I’ve done hours of research on copyright law and do everything possible to ensure I do not infringe upon anyone’s rights. I tend to take the stance of being over-cautious and won’t tag something as public domain if I am in any way unsure.

NOTE: This post was originally posted on a community site in August of 2013. That site no longer exists. Along with the article, I’ve also moved the comments from that original location.

4 Responses to "Copyright, Royalties & Public Domain Images"

  1. flycatcher says:

    This is going to be a very useful page to send people to with questions – thanks so much for putting the time into bringing all this information together.

    1. Michele says:

      Thank you so much for the kind words. I was hoping people would find it to be a useful guide.

  2. Stazjia says:

    I’m so impressed by the information you have on this page, it’s so comprehensive. What’s more, you say when you aren’t sure. What a change from people claiming they know everything! I think this should be on every web writer’s bookmarks. I totally agree with what you say about looking for images on Google, etc.

    1. Michele says:

      It seems the only absolute in using images online is that you can’t just go to Google and use whatever you find. It seems like everything else involving copyright has exceptions and complications. I doubt even the intellectual property lawyers understand all of it without researching things from time to time. As one of the government copyright office employees once told me, the Internet has led to the need for new laws, problem is, no one is writing them; everyone is relying upon court cases to create the law.

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