Copyright and Other Restrictions Which Apply to Publication and Other Forms of Distribution of Images: Sources for Information

(Version Used Until Jan. 2006)

Prints and Photographs Division, Library of Congress, Washington, D.C., 20540-4730

Summary

Summary: It is not true that all images within the Prints & Photographs Division are in the public domain. Patrons need to be aware of the several kinds of rights which might apply: copyright, donor restrictions, privacy rights, publicity rights, licensing and trademarks. This reference aid leads patrons to information about rights that may apply to material that is being used in the United States, regardless of the country in which the material originated. Use outside the U.S. is governed by the laws of the country in which the material is being used.

Division Responsibility

As a publicly supported institution the Library generally does not own rights to material in its collections. Therefore, it does not charge permission fees for use of such material and cannot give or deny permission to publish or otherwise distribute material in its collections. It is the patron's obligation to determine and satisfy copyright or other use restrictions (such as donor restrictions, privacy rights, publicity rights, licensing and trademarks) when publishing or otherwise distributing materials found in the Division's collections.

It is the Division's responsibility to inform patrons of any donor restrictions, that is, restrictions on use stipulated by the donor when the collection was transferred to the Library. These agreements between the Library and the donor about use of the collection are separate from the legal rights of copyright, publicity, and privacy discussed in this document. For example, the terms of the gift of the Work of Charles and Ray Eames stipulates that works in the collection may not be published or used commercially without the permission of the Eames Office. This requirement is not a matter of copyright--it is possible that works in the collection may be subject to copyrights held by others--but is the result of the agreement made between the donor and the Library.

In addition, the Division's staff will attempt to inform patrons about other restrictions when information is readily available.

The tools the Division uses for communicating known restrictions information are:

1. Rights statements that accompany online collections of digital images made available for public access outside the Library of Congress. In the Prints and Photographs Online Catalog, see the "Rights Information" document listed under "About This Collection" link. In American Memory see the "Copyright and Other Restrictions" document listed on the introductory page for each collection.
2. Catalog records, which sometimes contain notes to alert patrons to possible restrictions.
3. Written "Rights and restrictions statements." Such statements are produced as the information becomes available; not every "collection" held by P&P has a corresponding statement. Statements can be found on the Division's Rights and Restrictions Information web page at http://www.loc.gov/rr/print/res/rights.html.
   

Patron's Responsibility

Credits

Although the Library cannot grant permission for use of images, it does request that the following credit line be used to assist in identifying images: Library of Congress, Prints and Photographs Division [reproduction number, e.g., LC-USZ62-110212].

Investigating Rights

It is the user's responsibility to determine the copyright status or obtain required permissions before publishing or distributing material from the Library's collections. The nature of historical archival collections means that copyright or other information about restrictions may be difficult or even impossible to locate. Clues regarding information relating to rights may be derived from notations on the images, such as copyright notices and creator and source names, as well as image dates. When explicit rights information is lacking, patrons must conduct a "risk analysis" to determine appropriate use of an image. This involves coupling their knowledge of rights principles (such as duration of copyright, the definition of "published," and the definition of "fair use") with information supplied on the image and found in Copyright Office records.

Dealing with Common Situations

1. Works which were acquired by the Library as a result of their being submitted for copyright protection may be restricted. They can be recognized by the copyright date and number that appears on the back or the front of the images. Works copyrighted before 1923 are now in the public domain. Works with copyright notices 1923 or later should be checked for copyright. If a check has been made previously and recorded by the Division, the images or its catalog record may state "No copyright registration or renewal found, date."
2. Works produced by the U.S. government are not eligible for copyright.
3. Wire service, professional photographer, studio, publicity, or other photographs and original artwork from commercial sources may be restricted by copyright. They can be recognized by the name that appears on the front or back of the image, e.g., AP (Associated Press), Wide World, Lotte Jacobi, Columbia Pictures. In these cases, patrons may request a copyright search and retain any reply for their records. More information on specific wire services is available in the Restrictions Notebook under: Acme; Associated Press; Black Star; United Press International (including its predecessors Pacific & Atlantic, Newspaper Enterprise Association, International Newsreel, William H. Rau, International News Photos, Acme News Photos, United Press Photos, and UPI); and Wide World.
4. Images that lack credits to creators and images from unidentified sources are problematic because of the lack of information. Patrons who wish to show that a reasonable effort was made to determine copyright status should request a copyright search and retain any supplied report for their records.

Information available from the U.S. Copyright Office, Washington, D.C 20559-6000

The U.S. Copyright Office provides various circulars with information about the duration of copyright, conducting copyright searches, and "fair use." Copyright information circulars are available from the Copyright Office web site as pdf files. The following information will lead patrons to parts of the circulars which may be of particular interest:

1. Works published before 1923 are now in the public domain. (Circular 1, "Copyright Basics," page 6, supplemented by SL 15, "New Terms for Copyright Protection.")
2. Published works copyrighted 1923 through 1977 that are still in their original term of copyright or whose copyright was renewed are protected for 95 years from the copyright date. (Circular 1, "Copyright Basics," page 6, supplemented by SL 15, "New Terms for Copyright Protection." (Copyrights registered up until Dec. 31, 1963 expired after 28 years, unless the copyright was renewed. The only way to determine whether items published from 1924 through 1963 are still in a renewal term of copyright is to do a copyright search and establish that the item was copyrighted and that the copyright was renewed.)
3. Unpublished works created but not registered for copyright before January 1, 1978 may be protected by copyright law until the year 2002 or the life of the author/creator/copyright holder plus 70 years, whichever is longer. (Circular 1, "Copyright Basics," page 6, supplemented by SL15, "New Terms for Copyright Protection.")
4. Unpublished works registered for copyright before 1923 are now in the public domain.
5. Works created after Jan. 1, 1978 are protected for the author/creator/copyright holder's life plus 70 years. (Circular 1, "Copyright Basics," page 6, supplemented by SL15, "New Terms for Copyright Protection.")
6. The "fair use" provision of the copyright law allows the making of copies under some circumstances for "...purposes such as criticism, comment, news reporting, teaching, scholarship, or research." (Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians," page 8.)
7. "'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." (Circular 1, "Copyright Basics" page 3.)
8. In many cases, works published before March 1, 1989 without a copyright notice risk loss of copyright protection. (Circular 3, "Copyright Notice," page 1.)
9. Works made for hire may be protected by copyright by the employer, not the employee. (Circular 1, "Copyright Basics," page 2.)
10. Works produced by the U.S. government are not eligible for copyright. (Circular 1, "Copyright Basics," page 5.)
11. Copyright searches cannot be considered conclusive (Circular 22, "How to Investigate the Copyright Status of a Work," page 5.)
12. Use of images outside the U.S. is governed by the laws of the country in which the material is being used. (Circular 38a, "International Copyright Relations of the United States.")

Copyright Searches

Patrons who want an image checked for copyright are advised to make a search of the records of the U.S. Copyright Office themselves, hire someone qualified to do so for them, or pay the Copyright Office for a search. Further information is available in 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). As noted above, such searches can not be considered conclusive but will show a good faith effort. It is the user's responsibility to determine the copyright status or obtain required permissions before publishing or distributing material from the Library's collections.

Determining if material is "Unpublished"

The Copyight law distinguishes between "published" and "unpublished" material, with different terms of copyright applied to each.

The term "published" refers to material which was copied and distributed (i.e., "published") with the permission of the creator/copyright holder. The 1976 Copyright Act defines publication as follows:

"'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."

Most published material was also copyrighted, since the creator risked the loss of copyright if he/she authorized distribution of the image without copyrighting it or publishing it with a copyright notice. Examples of published material in P&P include:

• Prints by Currier & Ives, which were copyrighted and widely distributed in the late 19th century.
• Photographs by the Bain News Service, which were distributed by the Bain News Service to newspapers and periodicals in the early 20th century.
• Original political cartoons by Clifford Berryman which were printed in The Evening Star.

The term "unpublished" refers to material which has not been published, or which was published without the authorization of the creator/copyright holder. Examples of unpublished material in P&P include:

• Original political cartoons by Clifford Berryman (1869-1949) which were not printed in The Evening Star or elsewhere.
• Original watercolors of wildflowers drawn by Lucy Stratton (died 1936). (Note: LC is not aware of evidence that Ms. Stratton authorized publication of any of these images.)

Published Sources of Information on Other Types of Rights

Published books are a valuable source of information about other types of rights and restrictions. The following rights are described by quotations from books available in the Prints & Photographs Division. These are an aid to further reading and are not meant to be inclusive.

Implications of Missing or Improper Copyright Notices

"As a general rule, if the first authorized edition of a work published before 1978 did not have a proper copyright notice, the work went into the public domain. When photographs, such as publicity photographs, were widely disseminated (published) without copyright notice or an effort to control the distribution and use of the photos, they may have become public domain. This may include publicity pictures for motion picture films. However, these would have to be separate photographs, not film frame enlargements, because any frames from the film are protected by the underlying copyright in the film itself ... Be careful when using work with a missing [copyright] notice, because of exceptions made for mistakes, foreign editions and unpublished copies." How to Use Images Legally by Scott Tambert (Washington, D.C.: Scott Tambert, 1999).

The right of privacy

"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]

Right of privacy as applied to public figures

"A statesman, actor, musician, or inventor who asks for and desires public recognition in a large sense surrenders his right of privacy to the public...On the other hand, the privilege of using the picture of a famous person as a subject of new or current interest or for informative purposes does not extend to the commercialization of his personality through forms of treatment distinct from dissemination of news or information." Photography and the Law by George Chernoff and Hershel Sarbin (NY: AMPHOTO, 1971), pp. 36-37. [call number: KF2042.P45C44 1971 P&P]

Right of publicity

"Unlike the right of privacy, the right of publicity centers on the freedom to exploit and to exclude others from exploiting the commercial value inherent in, for instance, one's own name, voice, signature, photograph, image, or likeness. That prerogative has been described as a person's right to profit from [his or her] general notoriety." Art Law: the Guide for Collectors, Investors, Dealers, and Artists by Ralph E. Lerner and Judith Bresler (NY: Practicing Law Institute, 1989), p. 341. [call number: KF4288.29247 1989 P&P]

"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]

These books offer other information and advice, such as:

Description of "Works for Hire"

"Works considered to be works for hire are an important exception to the general rule that a photographer owns the copyright in a picture he or she has taken. If a photograph was taken by an employee on the job, the law considers the picture a work for hire, and the employer may own the copyright." The Photographer's Business and Legal Handbook by Leonard D. DuBoff (NY: Images Press, Inc. 1989), p. 5 [call number: KF2042.P45D8 1989; being assigned to P&P; photocopied portions in the P&P Reference file under "Copyright"]

Copying an image from a copyrighted book

"When faced with the requirements of a project and a lack of original photographs of some of the subjects that must be illustrated, publishers will often make a photographic copy of a picture already reproduced in a copyrighted publication. The publisher of the book from which the copy has been made must be contacted and permission requested for the intended use. However, that publisher may not own the copyright to the photograph it has reproduced." Picture Research: A Practical Guide by John Schultz and Barbara Schultz (N.Y.: Van Nostrand, 1991), p. 236. [call number: TR147.S38 1991 P&P]

Practical approaches to unsolvable copyright problems

" ...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..." Picture Research: A Practical Guide by John Schultz and Barbara Schultz (N.Y.: Van Nostrand, 1991), p. 216. [call number: TR147.S38 1991 P&P]

Prepared by: Mary Ison, Head, Reference Section. Last revised: 5/2003