Students and designers are often told that they must adhere to copyright laws or face legal action such as DMCA takedown orders or cease and desist letters from lawyers. But images, videos and recordings are essential for individual web sites or news and information organizations, and we need to understand what can be used without violating the law.
Of course, if you generate your own work, or if your organization employs photographers or photojournalists, then the work is copyrighted and should be registered at the Library of Congress copyright office if it is valuable.
In addition, you can a) use public domain work; b) use work licensed under the Creative Commons (for educational / non-profit use); c) make a “fair use” claim; or d) obtain permission and/or pay a fee.
What is public domain?
Any book, image, film or other type of recorded work created more than 95 years ago is in the public domain. So in 2021, works created in 1925 are in the public domain. Also, any book, image film or work recorded by the federal government is in the public domain. This means you are free to use them however you like.
You are also (mostly) free to use any of the millions of images, videos or recordings (unless otherwise marked) on the following sites:
- Library of Congress Division of prints and photographs — many but not all are copyright free; anything before 1926 is public domain, and of course anything by the government, including the FSA collection.
- British library — Millions of free images from the UK and Europe
- Open Culture — Outstanding collection of free films, movies, audio files and open courses.
- US Geological Survey — Scientific photos — geology but also plants and animals.
- US Dept. of Agriculture — Agricultural Research Service photos
- US Fish and Wildlife Service — Scientific photos of plants and animals.
- US Government — general collection of photos
- National Oceanographic and Atmospheric Administration — Scientific information
- National Aeronautics and Space Agency —Scientific information
- Centers for Disease Control — Scientific information
- New York public library — archive of 180,000 public domain photos
- Poynter guide to public domain, creative commons & low cost media
Creative Commons
Any work licensed under the CC Creative Commons is available for educational and non-profit use without formal permission, so long as authorship is credited. Most work under the Wikimedia Commons is licensed under creative commons (CC).
Lawrence Lessig and Eric Eldred more or less invented the Creative Commons License in 2001 as a form of protection that would allow works to be available for re-use, as with works in the public domain, but also be protected from misuse of authors rights or misappropriate of original work.
Search CC is a search aggregator for a dozen sites where Creative Commons image, audio and video files can be located.
Fair use exceptions to the copyright law
Students, authors, pundits, educators and others are free to cite small portions of a work under copyright for the purposes of discussion, debate or education so long as there is no commercial value in using the portions of the work. Just how small a portion, and how little commercial value is still being worked out, and over the years, the “fair use” concept under Title 17 Section 107 has eroded. In the US, the four part test of Fair Use is described in the Copyright statute and also in court cases.
This can be complicated in some cases, so take a look at other information here and here before making a commercially significant fair use claim. The four-part “fair use” test involves:
- the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes;
- nature of material itself
- percentage used in relation to the work as a whole; and
- effect on the market for or value of the original works
Royalty fees
Each individual medium has its own copyright royalty payment structure. For example, a musician who wants to play another musicians work, or record it, can do so under Compulsory Licensing by paying the fee, without obtaining the other musician’s permission.
To use a copyrighted photo in a textbook, on the other hand, direct permission is needed. Often, you can simply go to the photo agency (for example Magnum or Getty), specify the type of use, and pay the fee through an online system. For interior use in a textbook such as Revolutions in Communication, with a press run under 20,000, Bloomsbury publishers paid less than $200 each for important photos.
Additional articles:
Carol Highsmith, “Houston, Texas Skyline” (2014), part of the Lyda Hill Texas Collection at the Library of Congress (image via Wikimedia Commons)
Nov 2016 — Carol Highsmith’s lawsuit against Getty over “misappropriation” of public domain images was dismissed from federal court. Getty had offered the public domain images at standard licensing rates and then threatened Highsmith with a copyright infringement lawsuit when she used one of her own pictures.
Nov 2015 — European courts clarify copyright status of centuries-old portraits in the British National Portrait Gallery, which was in a dispute with the Wikimedia Foundation.
Oct 2013 — Is copyright duration too long? Shouldn’t Mario be public domain by now?
August 2013 — On the 50th anniversary of the Martin Luther King “I Have a Dream” speech, most people could not hear the speech itself because it is copyrighted by the King foundation. Some YouTube versions were up on the actual 50th anniversary but probably won’t be much longer.
March, 2011 — Federal court invalidates agreement between Google and two academic publishing associations. The agreement was the outcome of a lawsuit initially filed in 2005 asking Google to stop scanning public domain books. Settlement discussions are continuing. See Google print, books and library.
Further reading
Center for the Study of Public Domain, Duke University