Give Someone Premium Week

aes.KoBraH · Post by **aes.KoBraH** » Fri Oct 14, 2011 10:17 pm

I would like to announce that this is "Give Someone Premium Week"

Find your favourite silver-iconed buddy and share some love.

Army of GOD · Post by **Army of GOD** » Fri Oct 14, 2011 10:21 pm

Can you give me premium please? =(

aes.KoBraH · Post by **aes.KoBraH** » Fri Oct 14, 2011 10:26 pm

only if you make your name "Army of Zyzz" and not Army of GOD

frankiebee · Post by **frankiebee** » Sat Oct 15, 2011 5:23 am

Oooh, Ive been waiting for this for almost 5 years !!

Army of GOD · Post by **Army of GOD** » Sat Oct 15, 2011 10:27 am

aes.KoBraH wrote:only if you make your name "Army of Zyzz" and not Army of GOD

Zyzzyva?

Post by **Caymanmew** » Sat Oct 15, 2011 10:58 am

aes.KoBraH wrote:I would like to announce that this is "Give Someone Premium Week"

Find your favourite silver-iconed buddy and share some love.

i was about to give you it but then i notice your blue not silver.... maybe there will be a week to give your blue buddy's premium one day

aes.KoBraH · Post by **aes.KoBraH** » Sat Oct 15, 2011 7:40 pm

caymanmew wrote:
aes.KoBraH wrote:I would like to announce that this is "Give Someone Premium Week"

Find your favourite silver-iconed buddy and share some love.
i was about to give you it but then i notice your blue not silver.... maybe there will be a week to give your blue buddy's premium one day

Realized this after i posted

Serbia · Post by **Serbia** » Sat Oct 15, 2011 10:08 pm

Some residents of Oz are slower than some residents of Oz are slower than some residents of Oz are slower than some residents of

aes.KoBraH · Post by **aes.KoBraH** » Sat Oct 15, 2011 11:15 pm

Hey australians unite!

At least we not as bad as the american's who can't locate themselves on a world map xD. Australian's have brought so much to the world, for example we invented the. . . okay nevermind

Army of GOD · Post by **Army of GOD** » Sun Oct 16, 2011 12:43 am

aes.KoBraH wrote:Hey australians unite!

At least we not as bad as the american's who can't locate themselves on a world map xD. Australian's have brought so much to the world, for example we invented the. . . okay nevermind

At least we know how to use an apostrophe.

Army of GOD · Post by **Army of GOD** » Sun Oct 16, 2011 12:49 am

I take that back, only some of us know how to use apostrophes.

Thanks jgordon for making us all look bad.

Crazyirishman · Post by **Crazyirishman** » Sun Oct 16, 2011 1:01 am

aes.KoBraH wrote:Hey australians unite!

At least we not as bad as the american's who can't locate themselves on a world map xD. Australian's have brought so much to the world, for example we invented the. . . okay nevermind

America f*ck yeah.

Serbia · Post by **Serbia** » Sun Oct 16, 2011 1:01 pm

Fixed.

nebsmith · Post by **nebsmith** » Sun Oct 16, 2011 1:42 pm

I think the first version was funnier.

BigBallinStalin · Post by **BigBallinStalin** » Sun Oct 16, 2011 9:25 pm

I second the first one.

Crazyirishman is this week's premium winner!*

*restrictions apply

Spoiler

Copyright and Other Restrictions That Apply to Publication/Distribution of Images:
Assessing the Risk of Using a P&P Image

This document provides guidance on some of our most frequently asked questions about rights to images in Prints & Photographs Division (P&P) collections:

1. Can I use an image that I've found in P&P's collections? (This discussion includes information on how long copyrights last)
2. This all seems complicated when all I need is for you to sign a form giving me permission!
3. If it displays for me off-site (searching from somewhere other than a Library of Congress workstation), does it mean it's ok to use?
4. How should I credit the Library as the source of the images I'm using?
5. What's the worst that might happen if I decide to publish an image whose rights status is uncertain?

The information below applies to use of material in the United States. Use outside the U.S. is governed by the laws of the country in which the material is being used.
1. Can I use an image that I've found in the P&P collections?

The answer to this question involves considering other questions:

What do you know about the rights associated with the image? [more about this]
and
How do you plan to use the image? (For instance, if your use falls under the "fair use" clause in the copyright law, copyright will be less of an issue, though you will need to pay attention to any donor restrictions) [more about this]

Sometimes the answer is very clear. Other times the answer isn't clear at all.

In all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.
1a. What do you know about the rights associated with the image?

When the Prints & Photographs Division has information about the rights associated with an image or a collection of images, it conveys that information to researchers through catalog records and/or rights statements.

Can you find:

An associated catalog record (text giving data about the specific image) in the Prints & Photographs Online Catalog? [more about catalog records]
A rights and restrictions statement giving information about rights? [more about rights and restrictions statements]

If no catalog record data or rights statement is available, you will need to find the rights information related to the image or collection yourself. [more about doing your own evaluation]
Notes Found in P&P Catalog Records
Catalog records may contain:

"No known restrictions on publication"
"Publication may be restricted”

"May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook"
"Rights status not evaluated ..."
Notes with different wording or no note

When P&P staff have received or gathered information pertinent to rights for individual images, notes are added to the text of the catalog records to explain what is known.

Does the catalog record associated with the image include text that says "No known restrictions on publication"?

No known restrictions on publication means that the Library is unaware of any restrictions on the use of the image. There are generally two cases where this phrase is used:

1. There was a copyright and it was not renewed.

Example:

Sample catalog record with no renewal in Copyright Office note

2. The image is from a late 19th or early 20th century collection for which there is no evidence of any rights holder:

There are no copyright markings or other indications on the images to indicate that they were copyrighted or otherwise restricted, AND
The records of the U.S. Copyright Office do not indicate any copyright registration, AND
The acquisition paperwork for the collection does not contain any evidence of any restrictions, AND
Images from the collection have been used and published extensively without anyone stepping forward to claim rights.

These facts do not mean the image is in the public domain, but do indicate that no evidence has been found to show that restrictions apply.

Example:

Sample catalog record with no known restrictions note

Does the catalog record include text that says “Publication may be restricted” and refer to a rights statement? See "Rights and Restrictions statements" below.
Example:
Sample catalog record with pointer to online rights statement

Does the catalog record include text that says “May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook” (or similar wording). This refers to a notebook that is now online in the form of rights statements. See "Rights and Restrictions Statements," below.
Example:
Sample catalog record with note about Restrictions notebook

Does the catalog record include text that says "Rights status not evaluated. For general information see 'Copyright and Other Restrictions...' (http://lcweb.loc.gov/rr/print/195_copr.html)." This means the Library has not received or gathered information pertaining to the rights status of the image (see "Doing Your Own Evaluation," below).
Example:
Sample catalog record with rights not evaluated note

What if there is a note with different wording from the above examples or no note at all? Catalog records have been created over a long period of time, so wording of rights information may vary. If a record does not contain a rights note, it may mean the Library has not received or gathered information pertaining to the rights for the image and you will need to gather that information yourself (see "Doing Your Own Evaluation," below).

Top of Page Top of Page
Individual Rights and Restrictions Statements

Rights and Restrictions statements written by P&P for specific collections or artists are available online. Look on the Rights and Restrictions Information page or search in the site search box on that page for the name of:

the collection from which the image comes, or
the artist who made it.

If there is no rights statement for a collection, we may not have analyzed it yet. The information below is intended to help you interpret the language found in rights and restrictions statements.

If images were copyrighted and copyright has expired, we say “Images in this collection are considered to be in the public domain.”
Example:
Edward Curtis example rights statement
[view full statement]

If collectively the images meet the criteria for the "no known restrictions" designation, we say "no known restrictions" in the rights and restrictions statement (see information about the meaning of "No known restrictions" above).
Example:
George Grantham Bain example rights statement
[view full statement]

If images have been placed in the public domain by the creator or rights holder, we say that the images are in the public domain in the rights and restrictions statement.
Example:
Carol Highsmith example rights statement
[view full statement]

If images are restricted and the Library has information on how to contact the rights holder for permission, we provide that information.
Example: Ann Telnaes Rights and Restrictions Information
Sample rights statement with contact information
[view full statement]
If the donor of the collection has specified restrictions, we provide that information.
Sometimes the donor’s restriction is on a certain type of use. Example: LOOK Magazine Photograph Collection [view statement]
Sometimes the donor’s restriction is on a certain type of material within the collection. Example: G. Eric and Edith Matson Photograph Collection [view statement]
Sometimes the donor has specified the length of time that the collection is restricted. Example: Brigitte Stelzer [view statement]

Rights statements are sometimes confusing because images within a collection were sometimes made or gathered under varying circumstances. While the vast majority of images in a collection may be analyzed one way, there may be exceptions, and a few images may be analyzed another way.

Example:
U.S. Farm Security Administration/Office of War Information/Office of Emergency Management/Resettlement Administration Black & White Photographs Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Example:
Theodor Horydczak Collection Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Top of Page Top of Page
Doing Your Own Rights Evaluation

When the Prints and Photographs Division has not provided catalog notes or rights statements, you will need to find the rights information related to the image or collection yourself. You'll need to gather whatever information you can about the image.

(Reminder: in all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.)
This section covers:

Was the image made by the U.S. government?
Or do you have (or can you get) copyright registration information for the image?
Searching for copyright information
If not, do you think the item is published or unpublished?

How long copyrights last
Situations where there is simply insufficient information
What about copying from a book or other published source?
Finding more guidance

Was the Image Made by the U.S. Government?

Is there a credit on the image that indicates a U.S. federal agency or military service?
Example:
Sample catalog record where image was made by U.S. military service (Army Signal Corps)

The U.S. Copyright Office information says that "Works by the U.S. Government are not eligible for U.S. copyright protection." (Circular 1 [pdf], "Copyright Basics," page 5.)
Or Do You Have (Or Can You Get) Copyright Registration Information for the Image?

Evaluating the rights status of an item is easy when the name of a copyright claimant and the copyright registration number and date is found on the image or in the catalog record that describes it.

Example: A catalog record with copyright date and copyright registration number.
Sample catalog record with copyright number and copyright date recorded
Searching for Copyright Information

To determine whether you can get copyright information if it is not in the catalog record or on the item, you can

search the records of the U.S. Copyright Office yourself, or
hire someone to perform a search [see, for example, P&P's list of searchers] or
pay the Copyright Office for a search.

Further information about copyright searching is available in U.S. Copyright Office Circular 22 [pdf], "How to Investigate the Copyright Status of a Work," and from the Search Division of the U.S. Copyright Office (telephone 202-707-6850). Searches cannot be considered conclusive but will show a good faith effort.

If you find copyright registration information, the next step is to determine how long that copyright protection would last (see How Long Copyrights Last, below)
In the Absence of Copyright Registration Information, Do You Think the Item is Published or Unpublished?

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

Published

While the term "published" is not explicitly defined in the copyright law before 1976, the 1976 Copyright Act defined 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."

The authorization of the creator is required for an item to be considered published. 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.

Unpublished

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

Snapshot photographs taken by Harvey Wiley (1844-1930).
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.)

Based on what you conclude about whether the work in question is published or unpublished, the next step is to determine how long the copyright protection would last.
How Long Copyrights Last

You can apply facts about the duration of copyright to determine if a copyright has expired or is still in effect. The full copyright law is available from the U.S. Copyright Office web site at http://www.copyright.gov/, as are circulars that explain specific aspects of the law, including these circulars, which deal with duration of copyright:

Circular 1, Copyright Basics [PDF file; 769]
Circular 15, Renewal of Copyright [PDF file; 136 kb]
Circular 15a, Duration of Copyright [PDF file; 187 kb]
Circular 15t, Extension of Copyright Terms [PDF file; 19 kb]

The following facts are drawn from the circulars listed above:

Works published or registered in the U.S. before 1923 are now in the public domain.

Explanation: According to the Copyright Act of 1976, works registered for copyright or published with a copyright notice were protected for a maximum of 75 years of copyright protection, assuming the copyrights on the works were renewed (28 years first term plus 47 for the second, if renewed). Public Law 105-298 enacted in October 1998 increased the maximum to 95 years [28 years first term and 67 for the second, if renewed]. Before 1998 the longest amount of time a work could be protected was 75 years, so works before 1923 were no longer protected (1998 minus 75 years equals 1923). When the law changed, the 1923 date was ‘frozen” and will remain so until 2018 [2018 minus 95 equals 1923]. Starting in 2018 the date that works are no longer protected will again change yearly, being calculated as the current year minus 95 years.

Works published with notice or registered in the U.S. from and including 1923 through 1963 are now in the public domain unless the copyright was renewed, in which case they are protected for 95 years from the copyright or publication date. A copyright search is required to establish if the item was copyrighted and that the copyright was renewed (see information above about copyright searching ).
Works published with notice or registered between January 1, 1964 and December 31, 1977 are protected for 95 years.

Note: In some interpretations the fact that no copyright notice is found on the item that was published from 1923 through 1977, means that the item has passed into the public domain (see, for instance, Cornell’s chart (link below) on when works pass into the public domain). The pre-1978 copyright law required that a copyright notice be placed on a work as way to alert potential users that permission was needed. The criterion of the copyright notice is easy enough to apply to books, but a bit tricky with images, since the original work may have had a copyright notice which was not reproduced on subsequent copies or the copyright may have been on the work in which the image appeared, rather than on the image itself. The U.S. Copyright Office literature states that "Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time.” (Circular 3 [pdf], "Copyright Notice," page 2).

If your name is Crazyirishman, you are not eligible for this week's premium.

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5).

If you think the item should be considered unpublished, this guidance from the U.S. Copyright Office applies:

Works created before January 1, 1978 but not published or registered by that date are protected by copyright law for the life of the creator plus 70 years. (Circular 1 [pdf], "Copyright Basics, " page 5)

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5)

Situations Where the Image Was Made "For Hire" or Is an Anonymous or a Pseudonymous Work

One complicating factor is when someone makes an image for someone else (a work "for hire"). The U.S. Copyright Office information has this to say about such situations: Works made for hire may be protected by copyright by the employer, not the employee. (Circular 1 [pdf], "Copyright Basics," page 2). The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.
Foreign Works

For use within the United States, the following guidelines apply:

Works published outside the United States before July 1, 1909 are considered to be in the public domain. [Fishman chapter 18.12 and 18.15]
Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain. [Fishman, chapter 18.13 and 18.15]
Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain. [Schultz, p. 219; Office of Public Sector Information web site - http://www.opsi.gov.uk/about/faqs.htm disclaimer notice]

Use Outside the United States

Through various international treaties, most nations have established reciprocity with regard to copyright protection. According to the U.S. Copyright Office, “Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.” (Circular 38A [pdf], "International Copyright Relations of the United States," page 8.) If your use is going to take place outside the United States, you will need to be aware of the laws of the country in which you will be using the material and the treaties and conventions in which it participates. The list of U.S. copyright relations as of 2003 that is available in Copyright Circular 38A may be of assistance: Circular 38A [pdf].
Situations Where There is Simply Insufficient Information

Unfortunately, many P&P images lack information on the image or associated with the image (particularly the date of creation or the name of the individual or firm that created the image) to help with rights evaluation.

Example:
Masterpieces of Art building, New York World's Fair, 1939-1940
Sample catalog record for item which lacks creator or rights holder identification
These images, sometimes called "orphan works," are the most vexing to researchers trying to determine rights. You will need to consider what you know about when and why the image was created, what you plan to use the image for, and then assess the risk of using it for that purpose.

Consider whether the image has been published by other researchers. Repeated publication without a rights holder making a claim may lessen the liability of users.

Request a copyright search, even if you have little information to go on. The paperwork from the Copyright Office could show your good faith effort to establish the rights status of the image.
Record the type of searching you have done and what you did or didn't find, so you can demonstrate you used due diligence in searching for the rights holder.

It may or may not help to know that the problem is so vexing that the U.S. Copyright Office recently opened an examination of issues related to orphan works, which it defined as those whose owners are difficult or even impossible to locate. (http://www.copyright.gov/orphan/)
What About Copying One of P&P's Images from a Book or Other Published Source?

If you are planning to copy and publish an image from a copyrighted, published source (e.g., a book), you should check with the publisher, since technically it owns the rights to the version appearing in the book--though few publishers realize that or seem to wish to control such copying.
Finding More Guidance

Information is available from the U.S. Copyright Office web site at http://www.copyright.gov/.

The Prints & Photographs Division and the U.S. Copyright Office, both based at the Library of Congress, are precluded from offering interpretations of the copyright law, even though such interpretations are often helpful. Others have offered such interpretations, including:

A chart laying out when items pass into the public domain published by the Cornell Copyright Information Center [view chart] . disclaimer notice (See note above about the interpretation of publication without copyright notice found on this chart.)

A book written by professional picture researcher Scott Tambert: How to Use Images Legally http://www.pdimages.com/law/ disclaimer notice

John Schultz and Barbara Schultz, Picture Research: A Practical Guide. N.Y.: Van Nostrand, 1991. [call number: TR147.S38 1991 P&P] This book, for instance, summarized the problem of the lack of precise copyright/publication information when it comes to images:

...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.... ( p. 216).

Stephen Fishman, The Public Domain: How to Find & Use Copyright-free Writings, Music, Art & More. 2nd ed. Berkeley, CA: Nolo, 2004. [LC call number: KF3022.Z9 F57 2004]

Top of Page Top of Page
1b. How do you plan to use the image?

After you have gathered whatever facts are available about the rights associated with the image, consider how you plan to use the image.
This section covers:

Could your use be considered “fair use”?
How “commercial” is your use?
Privacy and publicity rights

Could your use be considered “fair use”? Section 107 of the U.S. Copyright law contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. (Copyright fact sheet on fair use, http://www.copyright.gov/fls/fl102.html)

Example: A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940 “ (LC-USZ62-117149) to show her architectural history class decides that her intended use is ok under the Fair Use fact clause.

How “commercial” is your use? In general, the more money you make the more at risk you are. One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies and thereby benefit economically. If your product will generate a lot of income, the rights holder has lost that income. If the expected profit is low, rights holder’s loss is low.

Example:
An advertiser wants to use the “Masterpieces of Art building, New York World's Fair, 1939-1940 (LC-USZ62-117149) on a t-shirt decides not to take the risk of using the image, given that his use is commercial and reliant upon the one image. A scholar who wants to use the same image for a scholarly book on World’s Fairs decides to take the risk of using the image, since his use is not commercial and the image is one of many in the book.

If you are using an image for advertising, will make money by using an image of a well-known person, or using an image in a way that may misrepresent or embarrass a living person, you need to consider privacy and publicity rights.
Privacy rights protect living people from unauthorized use of their image that is intrusive or embarrassing. As John and Barbara Schultz point out that: “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]
Publicity rights protects a person’s right to benefit from the commercial value connected with an individual’s name, image, or voice. John and Barbara Schultz point out that: " 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]
More information on privacy and publicity rights is available in the Library of Congress online “Legal” notice at http://www.loc.gov/homepage/legal.html# ... _publicity

Some examples of making use determinations

1. A publishing company wants to copy, reprint, and sell as a postcard (intended use) a photograph copyrighted before 1923 (facts about the image). It decides that since the copyright has clearly expired it is ok to do so.

2. A private citizen wants to copy and make reprints of baseball images from the Bain Collection and sell them on Ebay (intended use). After seeing that the Rights and Restrictions Statement says “No known restrictions” and weighing the publicity rights that may be held by heirs of the players (facts about the collection from which the image comes), she decides to proceed.

3. A textbook publisher want to use photographs taken by John Collier for the U.S. Farm Security Administration in a textbook (intended use). He sees that the Rights and Restrictions statement says “Most photographs in this collection were taken by photographers working for the U.S. Government. Work by the U.S. Government is not eligible for copyright protection (see page 5 of the Copyright Office's Circular 1, "Copyright Basics"). However, the FSA occasionally and the OWI frequently bought or otherwise obtained some photographs from other sources. All known information about the source of the images is found in the labels on the photographs.” He double checks the catalog records for the images he wants to use to be sure they are all by John Collier, a photographer who worked for the FSA, and hence for the U.S. government (facts about the image and the collection from which it comes), and decides the images are ok to use.

4. A producer of a documentary film wants to use a cartoon by Gary Trudeau in a film (intended use). The catalog record note says “May be restricted” and provides a link to the Rights and Restrictions Statement that says the all cartoons by Trudeau are under copyright (facts about the image and the rights asserted by the artist who made it). The producer decides that his use doesn’t fall under the Fair Use clause and contacts Trudeau for permission.

5. An author of a coffee table book on the American homefront during WWII wants to use a photograph by Wide World from the New York World-Telegram and Sun Photograph Collection showing Rita Hayworth and Marlene Dietrich serving food to soldiers in a Hollywood canteen (intended use). (LC-USZ62-113250 ) After reviewing the Rights and Restriction statements for both the New York World-Telegram and Sun Photograph Collection and Wide World (facts associated with the image, the collection from which it comes, and the company that made it), he decides to accept the risk of using a Wide World image that is not marked with a copyright notice and for which no registration has been found. However, after considering publicity rights, he decides to check and see what rights may be held by the estate of Rita Hayworth and Marlene Dietrich before using the image.

6. A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940“ (LC-USZ62-117149) to show her architectural history class (intended use) sees that image doesn’t include any copyright notice or stamp nor a name of a photographer or publisher (facts about the image). However, she decides this isn’t a problem since she believes her intended use is ok under the Fair Use fact clause. An advertiser who wants to use the same picture on a t-shirt decides not the take the risk of using the image, given that his use is commercial and reliant upon the one image (intended use).

Top of Page Top of Page
2. This all seems complicated when all I need is for you to sign a form giving me permission!

The Prints & Photographs Division cannot sign permission forms because, with one exception (the only exception is the Seagram County Court House Archives), it does not grant or deny permission to publish or otherwise distribute material from its collections.

The Prints & Photographs Division generally does not own rights in its collections (the only exception is the Seagram County Court House Archives).
As a publicly supported institution, the Library does not charge permission fees for use of material from the collections.
Since the Library does not require that you receive its permission before using an image, the only permission you need is what may be required from the copyright owner or donor, independently of the Library.

It can, indeed, be complicated to figure out whether an image can be used. One problem is that the copyright law traditionally was written for books and is increasingly written for music and film, profitable media for the entertainment industry. The law has to be “interpreted” to determine application to photographs and prints, and that’s not always so clear, as there is little case law regarding images to draw on for precedents. The other problem is that there are so many “orphan” images that lack information needed for determining rights status or rights owners.
Top of Page Top of Page
3. If it displays for me off site does it mean it’s ok to use?

The Library displays jpegs and tiffs offsite for those images for which a rights analysis shows:

that there are “No known restrictions,” OR
that the copyright has expired, OR
that the creator has released his rights OR
that the creator has agreed to allow his images to be displayed but still retains the publication rights.
Examples:
William C. Brumfield Photograph Collection [view rights and restrictions statement]
the William P. Gottlieb: Photographs from the Golden Age of Jazz available on the American Memory site [view rights statement]) OR
that the vast majority of images in a large collection are not restricted, even though the rights statement advises about select cases where restrictions might apply; with these collections, no one has ever successfully claimed such rights.
Examples:
Farm Security Administration/Office of War Information Collection
Theodor Horydczak Collection.

While the overwhelming majority of images that display jpegs and tiffs off-site fall into the first three categories, be sure you haven’t wandered into one of the few collections in the fourth category. Moreover, although the fact that jpegs/tiffs display off-site may offer some clues as to the rights status of an image, you will still need to make your own determination. As always, you need to consider the rights issues, incuding copyright, privacy, publicity and related rights in light of your intended use.
Top of Page Top of Page
4. How should I credit the Library as the source of the images I’m using?

When material form the Library’s collections is reproduced in a publication or website or otherwise distributed, the Library requests the courtesy of a credit line.

Ideally, the credit will include

reference to Library of Congress, and
the specific collection which includes the image, and
the image reproduction number (negative, transparency, or digital id number).

Such a credit furthers scholarship by helping researchers locate material and acknowledges the contribution made by the Library of Congress.

Example:
Wright Brothers collection, Prints & Photographs Division, Library of Congress, LC-ppmsca-04598.

When space considerations preclude such a caption, shorter versions may be used.
Examples:

Courtesy of the Library of Congress, LC-USZ62-13459
LOC, LC-ppmsca-09756
Library of Congress, C4-2356

Top of Page Top of Page
5. I really want to use an image, but I can’t tell for sure that it’s ok to use. I don’t want to land in jail. What’s the worst that might happen to me if I decide to go ahead and publish it?

The Library is aware of a few cases where a user was told by someone claiming to hold the rights to images in the Library's collections to “cease and desist” publication of the images. When the users requested proof of rights ownership, however, the matter was dropped.

The Library is unaware of any lawsuits involving the use of its historical images.

To establish a prima facie case of copyright infringement, the plaintiff must prove "ownership" of copyrighted material and "copying" by the defendant. (Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (citing Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). A plaintiff establishes "ownership" by demonstrating that the material is "copyrightable" and that he complied with the statutory requirements in securing the copyright. Central Point Software, Inc. v. Nugent, 903 F.Supp. 1057, 1057 (E.D. Tex. I995).

If it is difficult for you to find a rights holder after employing due diligence, it ought to be equally difficult for a claimant to show that a copyright had been secured. The U.S. Copyright Law is available online at: http://www.copyright.gov/title17/circ92.pdf [pdf].

BigBallinStalin · Post by **BigBallinStalin** » Sun Oct 16, 2011 9:27 pm

I second the first one.

Crazyirishman is this week's premium winner!*

*restrictions apply

Spoiler

Copyright and Other Restrictions That Apply to Publication/Distribution of Images:
Assessing the Risk of Using a P&P Image

This document provides guidance on some of our most frequently asked questions about rights to images in Prints & Photographs Division (P&P) collections:

1. Can I use an image that I've found in P&P's collections? (This discussion includes information on how long copyrights last)
2. This all seems complicated when all I need is for you to sign a form giving me permission!
3. If it displays for me off-site (searching from somewhere other than a Library of Congress workstation), does it mean it's ok to use?
4. How should I credit the Library as the source of the images I'm using?
5. What's the worst that might happen if I decide to publish an image whose rights status is uncertain?

The information below applies to use of material in the United States. Use outside the U.S. is governed by the laws of the country in which the material is being used.
1. Can I use an image that I've found in the P&P collections?

The answer to this question involves considering other questions:

What do you know about the rights associated with the image? [more about this]
and
How do you plan to use the image? (For instance, if your use falls under the "fair use" clause in the copyright law, copyright will be less of an issue, though you will need to pay attention to any donor restrictions) [more about this]

Sometimes the answer is very clear. Other times the answer isn't clear at all.

In all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.
1a. What do you know about the rights associated with the image?

When the Prints & Photographs Division has information about the rights associated with an image or a collection of images, it conveys that information to researchers through catalog records and/or rights statements.

Can you find:

An associated catalog record (text giving data about the specific image) in the Prints & Photographs Online Catalog? [more about catalog records]
A rights and restrictions statement giving information about rights? [more about rights and restrictions statements]

If no catalog record data or rights statement is available, you will need to find the rights information related to the image or collection yourself. [more about doing your own evaluation]
Notes Found in P&P Catalog Records
Catalog records may contain:

"No known restrictions on publication"
"Publication may be restricted”

"May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook"
"Rights status not evaluated ..."
Notes with different wording or no note

When P&P staff have received or gathered information pertinent to rights for individual images, notes are added to the text of the catalog records to explain what is known.

Does the catalog record associated with the image include text that says "No known restrictions on publication"?

No known restrictions on publication means that the Library is unaware of any restrictions on the use of the image. There are generally two cases where this phrase is used:

1. There was a copyright and it was not renewed.

Example:

Sample catalog record with no renewal in Copyright Office note

2. The image is from a late 19th or early 20th century collection for which there is no evidence of any rights holder:

There are no copyright markings or other indications on the images to indicate that they were copyrighted or otherwise restricted, AND
The records of the U.S. Copyright Office do not indicate any copyright registration, AND
The acquisition paperwork for the collection does not contain any evidence of any restrictions, AND
Images from the collection have been used and published extensively without anyone stepping forward to claim rights.

These facts do not mean the image is in the public domain, but do indicate that no evidence has been found to show that restrictions apply.

Example:

Sample catalog record with no known restrictions note

Does the catalog record include text that says “Publication may be restricted” and refer to a rights statement? See "Rights and Restrictions statements" below.
Example:
Sample catalog record with pointer to online rights statement

Does the catalog record include text that says “May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook” (or similar wording). This refers to a notebook that is now online in the form of rights statements. See "Rights and Restrictions Statements," below.
Example:
Sample catalog record with note about Restrictions notebook

Does the catalog record include text that says "Rights status not evaluated. For general information see 'Copyright and Other Restrictions...' (http://lcweb.loc.gov/rr/print/195_copr.html)." This means the Library has not received or gathered information pertaining to the rights status of the image (see "Doing Your Own Evaluation," below).
Example:
Sample catalog record with rights not evaluated note

What if there is a note with different wording from the above examples or no note at all? Catalog records have been created over a long period of time, so wording of rights information may vary. If a record does not contain a rights note, it may mean the Library has not received or gathered information pertaining to the rights for the image and you will need to gather that information yourself (see "Doing Your Own Evaluation," below).

Top of Page Top of Page
Individual Rights and Restrictions Statements

Rights and Restrictions statements written by P&P for specific collections or artists are available online. Look on the Rights and Restrictions Information page or search in the site search box on that page for the name of:

the collection from which the image comes, or
the artist who made it.

If there is no rights statement for a collection, we may not have analyzed it yet. The information below is intended to help you interpret the language found in rights and restrictions statements.

If images were copyrighted and copyright has expired, we say “Images in this collection are considered to be in the public domain.”
Example:
Edward Curtis example rights statement
[view full statement]

If collectively the images meet the criteria for the "no known restrictions" designation, we say "no known restrictions" in the rights and restrictions statement (see information about the meaning of "No known restrictions" above).
Example:
George Grantham Bain example rights statement
[view full statement]

If images have been placed in the public domain by the creator or rights holder, we say that the images are in the public domain in the rights and restrictions statement.
Example:
Carol Highsmith example rights statement
[view full statement]

If images are restricted and the Library has information on how to contact the rights holder for permission, we provide that information.
Example: Ann Telnaes Rights and Restrictions Information
Sample rights statement with contact information
[view full statement]
If the donor of the collection has specified restrictions, we provide that information.
Sometimes the donor’s restriction is on a certain type of use. Example: LOOK Magazine Photograph Collection [view statement]
Sometimes the donor’s restriction is on a certain type of material within the collection. Example: G. Eric and Edith Matson Photograph Collection [view statement]
Sometimes the donor has specified the length of time that the collection is restricted. Example: Brigitte Stelzer [view statement]

Rights statements are sometimes confusing because images within a collection were sometimes made or gathered under varying circumstances. While the vast majority of images in a collection may be analyzed one way, there may be exceptions, and a few images may be analyzed another way.

Example:
U.S. Farm Security Administration/Office of War Information/Office of Emergency Management/Resettlement Administration Black & White Photographs Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Example:
Theodor Horydczak Collection Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Top of Page Top of Page
Doing Your Own Rights Evaluation

When the Prints and Photographs Division has not provided catalog notes or rights statements, you will need to find the rights information related to the image or collection yourself. You'll need to gather whatever information you can about the image.

(Reminder: in all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.)
This section covers:

Was the image made by the U.S. government?
Or do you have (or can you get) copyright registration information for the image?
Searching for copyright information
If not, do you think the item is published or unpublished?

How long copyrights last
Situations where there is simply insufficient information
What about copying from a book or other published source?
Finding more guidance

Was the Image Made by the U.S. Government?

Is there a credit on the image that indicates a U.S. federal agency or military service?
Example:
Sample catalog record where image was made by U.S. military service (Army Signal Corps)

The U.S. Copyright Office information says that "Works by the U.S. Government are not eligible for U.S. copyright protection." (Circular 1 [pdf], "Copyright Basics," page 5.)
Or Do You Have (Or Can You Get) Copyright Registration Information for the Image?

Evaluating the rights status of an item is easy when the name of a copyright claimant and the copyright registration number and date is found on the image or in the catalog record that describes it.

Example: A catalog record with copyright date and copyright registration number.
Sample catalog record with copyright number and copyright date recorded
Searching for Copyright Information

To determine whether you can get copyright information if it is not in the catalog record or on the item, you can

search the records of the U.S. Copyright Office yourself, or
hire someone to perform a search [see, for example, P&P's list of searchers] or
pay the Copyright Office for a search.

Further information about copyright searching is available in U.S. Copyright Office Circular 22 [pdf], "How to Investigate the Copyright Status of a Work," and from the Search Division of the U.S. Copyright Office (telephone 202-707-6850). Searches cannot be considered conclusive but will show a good faith effort.

If you find copyright registration information, the next step is to determine how long that copyright protection would last (see How Long Copyrights Last, below)
In the Absence of Copyright Registration Information, Do You Think the Item is Published or Unpublished?

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

Published

While the term "published" is not explicitly defined in the copyright law before 1976, the 1976 Copyright Act defined 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."

The authorization of the creator is required for an item to be considered published. 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.

Unpublished

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

Snapshot photographs taken by Harvey Wiley (1844-1930).
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.)

Based on what you conclude about whether the work in question is published or unpublished, the next step is to determine how long the copyright protection would last.
How Long Copyrights Last

You can apply facts about the duration of copyright to determine if a copyright has expired or is still in effect. The full copyright law is available from the U.S. Copyright Office web site at http://www.copyright.gov/, as are circulars that explain specific aspects of the law, including these circulars, which deal with duration of copyright:

Circular 1, Copyright Basics [PDF file; 769]
Circular 15, Renewal of Copyright [PDF file; 136 kb]
Circular 15a, Duration of Copyright [PDF file; 187 kb]
Circular 15t, Extension of Copyright Terms [PDF file; 19 kb]

The following facts are drawn from the circulars listed above:

Works published or registered in the U.S. before 1923 are now in the public domain.

Explanation: According to the Copyright Act of 1976, works registered for copyright or published with a copyright notice were protected for a maximum of 75 years of copyright protection, assuming the copyrights on the works were renewed (28 years first term plus 47 for the second, if renewed). Public Law 105-298 enacted in October 1998 increased the maximum to 95 years [28 years first term and 67 for the second, if renewed]. Before 1998 the longest amount of time a work could be protected was 75 years, so works before 1923 were no longer protected (1998 minus 75 years equals 1923). When the law changed, the 1923 date was ‘frozen” and will remain so until 2018 [2018 minus 95 equals 1923]. Starting in 2018 the date that works are no longer protected will again change yearly, being calculated as the current year minus 95 years.

Works published with notice or registered in the U.S. from and including 1923 through 1963 are now in the public domain unless the copyright was renewed, in which case they are protected for 95 years from the copyright or publication date. A copyright search is required to establish if the item was copyrighted and that the copyright was renewed (see information above about copyright searching ).
Works published with notice or registered between January 1, 1964 and December 31, 1977 are protected for 95 years.

Note: In some interpretations the fact that no copyright notice is found on the item that was published from 1923 through 1977, means that the item has passed into the public domain (see, for instance, Cornell’s chart (link below) on when works pass into the public domain). The pre-1978 copyright law required that a copyright notice be placed on a work as way to alert potential users that permission was needed. The criterion of the copyright notice is easy enough to apply to books, but a bit tricky with images, since the original work may have had a copyright notice which was not reproduced on subsequent copies or the copyright may have been on the work in which the image appeared, rather than on the image itself. The U.S. Copyright Office literature states that "Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time.” (Circular 3 [pdf], "Copyright Notice," page 2).

If your CC screen name/account name/identity in any way, shape, or form is "Crazyirishman", you are not eligible for this week's premium.

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5).

If you think the item should be considered unpublished, this guidance from the U.S. Copyright Office applies:

Works created before January 1, 1978 but not published or registered by that date are protected by copyright law for the life of the creator plus 70 years. (Circular 1 [pdf], "Copyright Basics, " page 5)

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5)

Situations Where the Image Was Made "For Hire" or Is an Anonymous or a Pseudonymous Work

One complicating factor is when someone makes an image for someone else (a work "for hire"). The U.S. Copyright Office information has this to say about such situations: Works made for hire may be protected by copyright by the employer, not the employee. (Circular 1 [pdf], "Copyright Basics," page 2). The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.
Foreign Works

For use within the United States, the following guidelines apply:

Works published outside the United States before July 1, 1909 are considered to be in the public domain. [Fishman chapter 18.12 and 18.15]
Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain. [Fishman, chapter 18.13 and 18.15]
Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain. [Schultz, p. 219; Office of Public Sector Information web site - http://www.opsi.gov.uk/about/faqs.htm disclaimer notice]

Use Outside the United States

Through various international treaties, most nations have established reciprocity with regard to copyright protection. According to the U.S. Copyright Office, “Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.” (Circular 38A [pdf], "International Copyright Relations of the United States," page 8.) If your use is going to take place outside the United States, you will need to be aware of the laws of the country in which you will be using the material and the treaties and conventions in which it participates. The list of U.S. copyright relations as of 2003 that is available in Copyright Circular 38A may be of assistance: Circular 38A [pdf].
Situations Where There is Simply Insufficient Information

Unfortunately, many P&P images lack information on the image or associated with the image (particularly the date of creation or the name of the individual or firm that created the image) to help with rights evaluation.

Example:
Masterpieces of Art building, New York World's Fair, 1939-1940
Sample catalog record for item which lacks creator or rights holder identification
These images, sometimes called "orphan works," are the most vexing to researchers trying to determine rights. You will need to consider what you know about when and why the image was created, what you plan to use the image for, and then assess the risk of using it for that purpose.

Consider whether the image has been published by other researchers. Repeated publication without a rights holder making a claim may lessen the liability of users.

Request a copyright search, even if you have little information to go on. The paperwork from the Copyright Office could show your good faith effort to establish the rights status of the image.
Record the type of searching you have done and what you did or didn't find, so you can demonstrate you used due diligence in searching for the rights holder.

It may or may not help to know that the problem is so vexing that the U.S. Copyright Office recently opened an examination of issues related to orphan works, which it defined as those whose owners are difficult or even impossible to locate. (http://www.copyright.gov/orphan/)
What About Copying One of P&P's Images from a Book or Other Published Source?

If you are planning to copy and publish an image from a copyrighted, published source (e.g., a book), you should check with the publisher, since technically it owns the rights to the version appearing in the book--though few publishers realize that or seem to wish to control such copying.
Finding More Guidance

Information is available from the U.S. Copyright Office web site at http://www.copyright.gov/.

The Prints & Photographs Division and the U.S. Copyright Office, both based at the Library of Congress, are precluded from offering interpretations of the copyright law, even though such interpretations are often helpful. Others have offered such interpretations, including:

A chart laying out when items pass into the public domain published by the Cornell Copyright Information Center [view chart] . disclaimer notice (See note above about the interpretation of publication without copyright notice found on this chart.)

A book written by professional picture researcher Scott Tambert: How to Use Images Legally http://www.pdimages.com/law/ disclaimer notice

John Schultz and Barbara Schultz, Picture Research: A Practical Guide. N.Y.: Van Nostrand, 1991. [call number: TR147.S38 1991 P&P] This book, for instance, summarized the problem of the lack of precise copyright/publication information when it comes to images:

...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.... ( p. 216).

Stephen Fishman, The Public Domain: How to Find & Use Copyright-free Writings, Music, Art & More. 2nd ed. Berkeley, CA: Nolo, 2004. [LC call number: KF3022.Z9 F57 2004]

Top of Page Top of Page
1b. How do you plan to use the image?

After you have gathered whatever facts are available about the rights associated with the image, consider how you plan to use the image.
This section covers:

Could your use be considered “fair use”?
How “commercial” is your use?
Privacy and publicity rights

Could your use be considered “fair use”? Section 107 of the U.S. Copyright law contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. (Copyright fact sheet on fair use, http://www.copyright.gov/fls/fl102.html)

Example: A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940 “ (LC-USZ62-117149) to show her architectural history class decides that her intended use is ok under the Fair Use fact clause.

How “commercial” is your use? In general, the more money you make the more at risk you are. One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies and thereby benefit economically. If your product will generate a lot of income, the rights holder has lost that income. If the expected profit is low, rights holder’s loss is low.

Example:
An advertiser wants to use the “Masterpieces of Art building, New York World's Fair, 1939-1940 (LC-USZ62-117149) on a t-shirt decides not to take the risk of using the image, given that his use is commercial and reliant upon the one image. A scholar who wants to use the same image for a scholarly book on World’s Fairs decides to take the risk of using the image, since his use is not commercial and the image is one of many in the book.

If you are using an image for advertising, will make money by using an image of a well-known person, or using an image in a way that may misrepresent or embarrass a living person, you need to consider privacy and publicity rights.
Privacy rights protect living people from unauthorized use of their image that is intrusive or embarrassing. As John and Barbara Schultz point out that: “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]
Publicity rights protects a person’s right to benefit from the commercial value connected with an individual’s name, image, or voice. John and Barbara Schultz point out that: " 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]
More information on privacy and publicity rights is available in the Library of Congress online “Legal” notice at http://www.loc.gov/homepage/legal.html# ... _publicity

Some examples of making use determinations

1. A publishing company wants to copy, reprint, and sell as a postcard (intended use) a photograph copyrighted before 1923 (facts about the image). It decides that since the copyright has clearly expired it is ok to do so.

2. A private citizen wants to copy and make reprints of baseball images from the Bain Collection and sell them on Ebay (intended use). After seeing that the Rights and Restrictions Statement says “No known restrictions” and weighing the publicity rights that may be held by heirs of the players (facts about the collection from which the image comes), she decides to proceed.

3. A textbook publisher want to use photographs taken by John Collier for the U.S. Farm Security Administration in a textbook (intended use). He sees that the Rights and Restrictions statement says “Most photographs in this collection were taken by photographers working for the U.S. Government. Work by the U.S. Government is not eligible for copyright protection (see page 5 of the Copyright Office's Circular 1, "Copyright Basics"). However, the FSA occasionally and the OWI frequently bought or otherwise obtained some photographs from other sources. All known information about the source of the images is found in the labels on the photographs.” He double checks the catalog records for the images he wants to use to be sure they are all by John Collier, a photographer who worked for the FSA, and hence for the U.S. government (facts about the image and the collection from which it comes), and decides the images are ok to use.

4. A producer of a documentary film wants to use a cartoon by Gary Trudeau in a film (intended use). The catalog record note says “May be restricted” and provides a link to the Rights and Restrictions Statement that says the all cartoons by Trudeau are under copyright (facts about the image and the rights asserted by the artist who made it). The producer decides that his use doesn’t fall under the Fair Use clause and contacts Trudeau for permission.

5. An author of a coffee table book on the American homefront during WWII wants to use a photograph by Wide World from the New York World-Telegram and Sun Photograph Collection showing Rita Hayworth and Marlene Dietrich serving food to soldiers in a Hollywood canteen (intended use). (LC-USZ62-113250 ) After reviewing the Rights and Restriction statements for both the New York World-Telegram and Sun Photograph Collection and Wide World (facts associated with the image, the collection from which it comes, and the company that made it), he decides to accept the risk of using a Wide World image that is not marked with a copyright notice and for which no registration has been found. However, after considering publicity rights, he decides to check and see what rights may be held by the estate of Rita Hayworth and Marlene Dietrich before using the image.

6. A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940“ (LC-USZ62-117149) to show her architectural history class (intended use) sees that image doesn’t include any copyright notice or stamp nor a name of a photographer or publisher (facts about the image). However, she decides this isn’t a problem since she believes her intended use is ok under the Fair Use fact clause. An advertiser who wants to use the same picture on a t-shirt decides not the take the risk of using the image, given that his use is commercial and reliant upon the one image (intended use).

Top of Page Top of Page
2. This all seems complicated when all I need is for you to sign a form giving me permission!

The Prints & Photographs Division cannot sign permission forms because, with one exception (the only exception is the Seagram County Court House Archives), it does not grant or deny permission to publish or otherwise distribute material from its collections.

The Prints & Photographs Division generally does not own rights in its collections (the only exception is the Seagram County Court House Archives).
As a publicly supported institution, the Library does not charge permission fees for use of material from the collections.
Since the Library does not require that you receive its permission before using an image, the only permission you need is what may be required from the copyright owner or donor, independently of the Library.

It can, indeed, be complicated to figure out whether an image can be used. One problem is that the copyright law traditionally was written for books and is increasingly written for music and film, profitable media for the entertainment industry. The law has to be “interpreted” to determine application to photographs and prints, and that’s not always so clear, as there is little case law regarding images to draw on for precedents. The other problem is that there are so many “orphan” images that lack information needed for determining rights status or rights owners.
Top of Page Top of Page
3. If it displays for me off site does it mean it’s ok to use?

The Library displays jpegs and tiffs offsite for those images for which a rights analysis shows:

that there are “No known restrictions,” OR
that the copyright has expired, OR
that the creator has released his rights OR
that the creator has agreed to allow his images to be displayed but still retains the publication rights.
Examples:
William C. Brumfield Photograph Collection [view rights and restrictions statement]
the William P. Gottlieb: Photographs from the Golden Age of Jazz available on the American Memory site [view rights statement]) OR
that the vast majority of images in a large collection are not restricted, even though the rights statement advises about select cases where restrictions might apply; with these collections, no one has ever successfully claimed such rights.
Examples:
Farm Security Administration/Office of War Information Collection
Theodor Horydczak Collection.

While the overwhelming majority of images that display jpegs and tiffs off-site fall into the first three categories, be sure you haven’t wandered into one of the few collections in the fourth category. Moreover, although the fact that jpegs/tiffs display off-site may offer some clues as to the rights status of an image, you will still need to make your own determination. As always, you need to consider the rights issues, incuding copyright, privacy, publicity and related rights in light of your intended use.
Top of Page Top of Page
4. How should I credit the Library as the source of the images I’m using?

When material form the Library’s collections is reproduced in a publication or website or otherwise distributed, the Library requests the courtesy of a credit line.

Ideally, the credit will include

reference to Library of Congress, and
the specific collection which includes the image, and
the image reproduction number (negative, transparency, or digital id number).

Such a credit furthers scholarship by helping researchers locate material and acknowledges the contribution made by the Library of Congress.

Example:
Wright Brothers collection, Prints & Photographs Division, Library of Congress, LC-ppmsca-04598.

When space considerations preclude such a caption, shorter versions may be used.
Examples:

Courtesy of the Library of Congress, LC-USZ62-13459
LOC, LC-ppmsca-09756
Library of Congress, C4-2356

Top of Page Top of Page
5. I really want to use an image, but I can’t tell for sure that it’s ok to use. I don’t want to land in jail. What’s the worst that might happen to me if I decide to go ahead and publish it?

The Library is aware of a few cases where a user was told by someone claiming to hold the rights to images in the Library's collections to “cease and desist” publication of the images. When the users requested proof of rights ownership, however, the matter was dropped.

The Library is unaware of any lawsuits involving the use of its historical images.

To establish a prima facie case of copyright infringement, the plaintiff must prove "ownership" of copyrighted material and "copying" by the defendant. (Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (citing Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). A plaintiff establishes "ownership" by demonstrating that the material is "copyrightable" and that he complied with the statutory requirements in securing the copyright. Central Point Software, Inc. v. Nugent, 903 F.Supp. 1057, 1057 (E.D. Tex. I995).

If it is difficult for you to find a rights holder after employing due diligence, it ought to be equally difficult for a claimant to show that a copyright had been secured. The U.S. Copyright Law is available online at: http://www.copyright.gov/title17/circ92.pdf [pdf].

aes.KoBraH · Post by **aes.KoBraH** » Sun Oct 16, 2011 10:58 pm

i wanted to be this week's premium winner!! someone get me some xD

Army of GOD · Post by **Army of GOD** » Sun Oct 16, 2011 11:47 pm

aes.KoBraH wrote:i wanted to be this week's premium winner!! someone get me some xD

I'll give you premium.

But you have to give me something in return. You scratch my back, I scratch yours.

More specifically, I buy you premium, you get a hot girl to sex me up.

tkr4lf · Post by **tkr4lf** » Mon Oct 17, 2011 12:36 pm

My premium will be up in January. My previous offer of a blowjob for a premium membership stands. I'm not willing to travel. You have to come to me.

Stephan Wayne · Post by **Stephan Wayne** » Mon Oct 17, 2011 12:46 pm

tkr4lf wrote:My premium will be up in January. My previous offer of a blowjob for a premium membership stands. I'm not willing to travel. You have to come to me.

Damn you lost me on the travailing part

trapyoung · Post by **trapyoung** » Mon Oct 17, 2011 12:51 pm

tkr4lf wrote:My premium will be up in January. My previous offer of a blowjob for a premium membership stands. I'm not willing to travel. You have to come on me.

Fixed.

Stephan Wayne · Post by **Stephan Wayne** » Mon Oct 17, 2011 1:00 pm

trapyoung wrote:
tkr4lf wrote:My premium will be up in January. My previous offer of a blowjob for a premium membership stands. I'm not willing to travel. You have to come on me.
Fixed.

ohh now i see ok deal where you be

tkr4lf · Post by **tkr4lf** » Mon Oct 17, 2011 9:03 pm

Stephen Wayne wrote:
trapyoung wrote:
tkr4lf wrote:My premium will be up in January. My previous offer of a blowjob for a premium membership stands. I'm not willing to travel. You have to come to me and on me.
Fixed.
ohh now i see ok deal where you be

Fixed.

Crazyirishman · Post by **Crazyirishman** » Mon Oct 17, 2011 10:54 pm

BigBallinStalin wrote:I second the first one.

Crazyirishman is this week's premium winner!*

*restrictions apply

Spoiler
Copyright and Other Restrictions That Apply to Publication/Distribution of Images:
Assessing the Risk of Using a P&P Image

This document provides guidance on some of our most frequently asked questions about rights to images in Prints & Photographs Division (P&P) collections:

1. Can I use an image that I've found in P&P's collections? (This discussion includes information on how long copyrights last)
2. This all seems complicated when all I need is for you to sign a form giving me permission!
3. If it displays for me off-site (searching from somewhere other than a Library of Congress workstation), does it mean it's ok to use?
4. How should I credit the Library as the source of the images I'm using?
5. What's the worst that might happen if I decide to publish an image whose rights status is uncertain?

The information below applies to use of material in the United States. Use outside the U.S. is governed by the laws of the country in which the material is being used.
1. Can I use an image that I've found in the P&P collections?

The answer to this question involves considering other questions:

What do you know about the rights associated with the image? [more about this]
and
How do you plan to use the image? (For instance, if your use falls under the "fair use" clause in the copyright law, copyright will be less of an issue, though you will need to pay attention to any donor restrictions) [more about this]

Sometimes the answer is very clear. Other times the answer isn't clear at all.

In all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.
1a. What do you know about the rights associated with the image?

When the Prints & Photographs Division has information about the rights associated with an image or a collection of images, it conveys that information to researchers through catalog records and/or rights statements.

Can you find:

An associated catalog record (text giving data about the specific image) in the Prints & Photographs Online Catalog? [more about catalog records]
A rights and restrictions statement giving information about rights? [more about rights and restrictions statements]

If no catalog record data or rights statement is available, you will need to find the rights information related to the image or collection yourself. [more about doing your own evaluation]
Notes Found in P&P Catalog Records
Catalog records may contain:

"No known restrictions on publication"
"Publication may be restricted”

"May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook"
"Rights status not evaluated ..."
Notes with different wording or no note

When P&P staff have received or gathered information pertinent to rights for individual images, notes are added to the text of the catalog records to explain what is known.

Does the catalog record associated with the image include text that says "No known restrictions on publication"?

No known restrictions on publication means that the Library is unaware of any restrictions on the use of the image. There are generally two cases where this phrase is used:

1. There was a copyright and it was not renewed.

Example:

Sample catalog record with no renewal in Copyright Office note

2. The image is from a late 19th or early 20th century collection for which there is no evidence of any rights holder:

There are no copyright markings or other indications on the images to indicate that they were copyrighted or otherwise restricted, AND
The records of the U.S. Copyright Office do not indicate any copyright registration, AND
The acquisition paperwork for the collection does not contain any evidence of any restrictions, AND
Images from the collection have been used and published extensively without anyone stepping forward to claim rights.

These facts do not mean the image is in the public domain, but do indicate that no evidence has been found to show that restrictions apply.

Example:

Sample catalog record with no known restrictions note

Does the catalog record include text that says “Publication may be restricted” and refer to a rights statement? See "Rights and Restrictions statements" below.
Example:
Sample catalog record with pointer to online rights statement

Does the catalog record include text that says “May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook” (or similar wording). This refers to a notebook that is now online in the form of rights statements. See "Rights and Restrictions Statements," below.
Example:
Sample catalog record with note about Restrictions notebook

Does the catalog record include text that says "Rights status not evaluated. For general information see 'Copyright and Other Restrictions...' (http://lcweb.loc.gov/rr/print/195_copr.html)." This means the Library has not received or gathered information pertaining to the rights status of the image (see "Doing Your Own Evaluation," below).
Example:
Sample catalog record with rights not evaluated note

What if there is a note with different wording from the above examples or no note at all? Catalog records have been created over a long period of time, so wording of rights information may vary. If a record does not contain a rights note, it may mean the Library has not received or gathered information pertaining to the rights for the image and you will need to gather that information yourself (see "Doing Your Own Evaluation," below).

Top of Page Top of Page
Individual Rights and Restrictions Statements

Rights and Restrictions statements written by P&P for specific collections or artists are available online. Look on the Rights and Restrictions Information page or search in the site search box on that page for the name of:

the collection from which the image comes, or
the artist who made it.

If there is no rights statement for a collection, we may not have analyzed it yet. The information below is intended to help you interpret the language found in rights and restrictions statements.

If images were copyrighted and copyright has expired, we say “Images in this collection are considered to be in the public domain.”
Example:
Edward Curtis example rights statement
[view full statement]

If collectively the images meet the criteria for the "no known restrictions" designation, we say "no known restrictions" in the rights and restrictions statement (see information about the meaning of "No known restrictions" above).
Example:
George Grantham Bain example rights statement
[view full statement]

If images have been placed in the public domain by the creator or rights holder, we say that the images are in the public domain in the rights and restrictions statement.
Example:
Carol Highsmith example rights statement
[view full statement]

If images are restricted and the Library has information on how to contact the rights holder for permission, we provide that information.
Example: Ann Telnaes Rights and Restrictions Information
Sample rights statement with contact information
[view full statement]
If the donor of the collection has specified restrictions, we provide that information.
Sometimes the donor’s restriction is on a certain type of use. Example: LOOK Magazine Photograph Collection [view statement]
Sometimes the donor’s restriction is on a certain type of material within the collection. Example: G. Eric and Edith Matson Photograph Collection [view statement]
Sometimes the donor has specified the length of time that the collection is restricted. Example: Brigitte Stelzer [view statement]

Rights statements are sometimes confusing because images within a collection were sometimes made or gathered under varying circumstances. While the vast majority of images in a collection may be analyzed one way, there may be exceptions, and a few images may be analyzed another way.

Example:
U.S. Farm Security Administration/Office of War Information/Office of Emergency Management/Resettlement Administration Black & White Photographs Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Example:
Theodor Horydczak Collection Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Top of Page Top of Page
Doing Your Own Rights Evaluation

When the Prints and Photographs Division has not provided catalog notes or rights statements, you will need to find the rights information related to the image or collection yourself. You'll need to gather whatever information you can about the image.

(Reminder: in all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.)
This section covers:

Was the image made by the U.S. government?
Or do you have (or can you get) copyright registration information for the image?
Searching for copyright information
If not, do you think the item is published or unpublished?

How long copyrights last
Situations where there is simply insufficient information
What about copying from a book or other published source?
Finding more guidance

Was the Image Made by the U.S. Government?

Is there a credit on the image that indicates a U.S. federal agency or military service?
Example:
Sample catalog record where image was made by U.S. military service (Army Signal Corps)

The U.S. Copyright Office information says that "Works by the U.S. Government are not eligible for U.S. copyright protection." (Circular 1 [pdf], "Copyright Basics," page 5.)
Or Do You Have (Or Can You Get) Copyright Registration Information for the Image?

Evaluating the rights status of an item is easy when the name of a copyright claimant and the copyright registration number and date is found on the image or in the catalog record that describes it.

Example: A catalog record with copyright date and copyright registration number.
Sample catalog record with copyright number and copyright date recorded
Searching for Copyright Information

To determine whether you can get copyright information if it is not in the catalog record or on the item, you can

search the records of the U.S. Copyright Office yourself, or
hire someone to perform a search [see, for example, P&P's list of searchers] or
pay the Copyright Office for a search.

Further information about copyright searching is available in U.S. Copyright Office Circular 22 [pdf], "How to Investigate the Copyright Status of a Work," and from the Search Division of the U.S. Copyright Office (telephone 202-707-6850). Searches cannot be considered conclusive but will show a good faith effort.

If you find copyright registration information, the next step is to determine how long that copyright protection would last (see How Long Copyrights Last, below)
In the Absence of Copyright Registration Information, Do You Think the Item is Published or Unpublished?

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

Published

While the term "published" is not explicitly defined in the copyright law before 1976, the 1976 Copyright Act defined 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."

The authorization of the creator is required for an item to be considered published. 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.

Unpublished

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

Snapshot photographs taken by Harvey Wiley (1844-1930).
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.)

Based on what you conclude about whether the work in question is published or unpublished, the next step is to determine how long the copyright protection would last.
How Long Copyrights Last

You can apply facts about the duration of copyright to determine if a copyright has expired or is still in effect. The full copyright law is available from the U.S. Copyright Office web site at http://www.copyright.gov/, as are circulars that explain specific aspects of the law, including these circulars, which deal with duration of copyright:

Circular 1, Copyright Basics [PDF file; 769]
Circular 15, Renewal of Copyright [PDF file; 136 kb]
Circular 15a, Duration of Copyright [PDF file; 187 kb]
Circular 15t, Extension of Copyright Terms [PDF file; 19 kb]

The following facts are drawn from the circulars listed above:

Works published or registered in the U.S. before 1923 are now in the public domain.

Explanation: According to the Copyright Act of 1976, works registered for copyright or published with a copyright notice were protected for a maximum of 75 years of copyright protection, assuming the copyrights on the works were renewed (28 years first term plus 47 for the second, if renewed). Public Law 105-298 enacted in October 1998 increased the maximum to 95 years [28 years first term and 67 for the second, if renewed]. Before 1998 the longest amount of time a work could be protected was 75 years, so works before 1923 were no longer protected (1998 minus 75 years equals 1923). When the law changed, the 1923 date was ‘frozen” and will remain so until 2018 [2018 minus 95 equals 1923]. Starting in 2018 the date that works are no longer protected will again change yearly, being calculated as the current year minus 95 years.

Works published with notice or registered in the U.S. from and including 1923 through 1963 are now in the public domain unless the copyright was renewed, in which case they are protected for 95 years from the copyright or publication date. A copyright search is required to establish if the item was copyrighted and that the copyright was renewed (see information above about copyright searching ).
Works published with notice or registered between January 1, 1964 and December 31, 1977 are protected for 95 years.

Note: In some interpretations the fact that no copyright notice is found on the item that was published from 1923 through 1977, means that the item has passed into the public domain (see, for instance, Cornell’s chart (link below) on when works pass into the public domain). The pre-1978 copyright law required that a copyright notice be placed on a work as way to alert potential users that permission was needed. The criterion of the copyright notice is easy enough to apply to books, but a bit tricky with images, since the original work may have had a copyright notice which was not reproduced on subsequent copies or the copyright may have been on the work in which the image appeared, rather than on the image itself. The U.S. Copyright Office literature states that "Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time.” (Circular 3 [pdf], "Copyright Notice," page 2).

If your CC screen name/account name/identity in any way, shape, or form is "Crazyirishman", you are not eligible for this week's premium.

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5).

If you think the item should be considered unpublished, this guidance from the U.S. Copyright Office applies:

Works created before January 1, 1978 but not published or registered by that date are protected by copyright law for the life of the creator plus 70 years. (Circular 1 [pdf], "Copyright Basics, " page 5)

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5)

Situations Where the Image Was Made "For Hire" or Is an Anonymous or a Pseudonymous Work

One complicating factor is when someone makes an image for someone else (a work "for hire"). The U.S. Copyright Office information has this to say about such situations: Works made for hire may be protected by copyright by the employer, not the employee. (Circular 1 [pdf], "Copyright Basics," page 2). The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.
Foreign Works

For use within the United States, the following guidelines apply:

Works published outside the United States before July 1, 1909 are considered to be in the public domain. [Fishman chapter 18.12 and 18.15]
Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain. [Fishman, chapter 18.13 and 18.15]
Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain. [Schultz, p. 219; Office of Public Sector Information web site - http://www.opsi.gov.uk/about/faqs.htm disclaimer notice]

Use Outside the United States

Through various international treaties, most nations have established reciprocity with regard to copyright protection. According to the U.S. Copyright Office, “Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.” (Circular 38A [pdf], "International Copyright Relations of the United States," page 8.) If your use is going to take place outside the United States, you will need to be aware of the laws of the country in which you will be using the material and the treaties and conventions in which it participates. The list of U.S. copyright relations as of 2003 that is available in Copyright Circular 38A may be of assistance: Circular 38A [pdf].
Situations Where There is Simply Insufficient Information

Unfortunately, many P&P images lack information on the image or associated with the image (particularly the date of creation or the name of the individual or firm that created the image) to help with rights evaluation.

Example:
Masterpieces of Art building, New York World's Fair, 1939-1940
Sample catalog record for item which lacks creator or rights holder identification
These images, sometimes called "orphan works," are the most vexing to researchers trying to determine rights. You will need to consider what you know about when and why the image was created, what you plan to use the image for, and then assess the risk of using it for that purpose.

Consider whether the image has been published by other researchers. Repeated publication without a rights holder making a claim may lessen the liability of users.

Request a copyright search, even if you have little information to go on. The paperwork from the Copyright Office could show your good faith effort to establish the rights status of the image.
Record the type of searching you have done and what you did or didn't find, so you can demonstrate you used due diligence in searching for the rights holder.

It may or may not help to know that the problem is so vexing that the U.S. Copyright Office recently opened an examination of issues related to orphan works, which it defined as those whose owners are difficult or even impossible to locate. (http://www.copyright.gov/orphan/)
What About Copying One of P&P's Images from a Book or Other Published Source?

If you are planning to copy and publish an image from a copyrighted, published source (e.g., a book), you should check with the publisher, since technically it owns the rights to the version appearing in the book--though few publishers realize that or seem to wish to control such copying.
Finding More Guidance

Information is available from the U.S. Copyright Office web site at http://www.copyright.gov/.

The Prints & Photographs Division and the U.S. Copyright Office, both based at the Library of Congress, are precluded from offering interpretations of the copyright law, even though such interpretations are often helpful. Others have offered such interpretations, including:

A chart laying out when items pass into the public domain published by the Cornell Copyright Information Center [view chart] . disclaimer notice (See note above about the interpretation of publication without copyright notice found on this chart.)

A book written by professional picture researcher Scott Tambert: How to Use Images Legally http://www.pdimages.com/law/ disclaimer notice

John Schultz and Barbara Schultz, Picture Research: A Practical Guide. N.Y.: Van Nostrand, 1991. [call number: TR147.S38 1991 P&P] This book, for instance, summarized the problem of the lack of precise copyright/publication information when it comes to images:

...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.... ( p. 216).

Stephen Fishman, The Public Domain: How to Find & Use Copyright-free Writings, Music, Art & More. 2nd ed. Berkeley, CA: Nolo, 2004. [LC call number: KF3022.Z9 F57 2004]

Top of Page Top of Page
1b. How do you plan to use the image?

After you have gathered whatever facts are available about the rights associated with the image, consider how you plan to use the image.
This section covers:

Could your use be considered “fair use”?
How “commercial” is your use?
Privacy and publicity rights

Could your use be considered “fair use”? Section 107 of the U.S. Copyright law contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. (Copyright fact sheet on fair use, http://www.copyright.gov/fls/fl102.html)

Example: A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940 “ (LC-USZ62-117149) to show her architectural history class decides that her intended use is ok under the Fair Use fact clause.

How “commercial” is your use? In general, the more money you make the more at risk you are. One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies and thereby benefit economically. If your product will generate a lot of income, the rights holder has lost that income. If the expected profit is low, rights holder’s loss is low.

Example:
An advertiser wants to use the “Masterpieces of Art building, New York World's Fair, 1939-1940 (LC-USZ62-117149) on a t-shirt decides not to take the risk of using the image, given that his use is commercial and reliant upon the one image. A scholar who wants to use the same image for a scholarly book on World’s Fairs decides to take the risk of using the image, since his use is not commercial and the image is one of many in the book.

If you are using an image for advertising, will make money by using an image of a well-known person, or using an image in a way that may misrepresent or embarrass a living person, you need to consider privacy and publicity rights.
Privacy rights protect living people from unauthorized use of their image that is intrusive or embarrassing. As John and Barbara Schultz point out that: “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]
Publicity rights protects a person’s right to benefit from the commercial value connected with an individual’s name, image, or voice. John and Barbara Schultz point out that: " 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]
More information on privacy and publicity rights is available in the Library of Congress online “Legal” notice at http://www.loc.gov/homepage/legal.html# ... _publicity

Some examples of making use determinations

1. A publishing company wants to copy, reprint, and sell as a postcard (intended use) a photograph copyrighted before 1923 (facts about the image). It decides that since the copyright has clearly expired it is ok to do so.

2. A private citizen wants to copy and make reprints of baseball images from the Bain Collection and sell them on Ebay (intended use). After seeing that the Rights and Restrictions Statement says “No known restrictions” and weighing the publicity rights that may be held by heirs of the players (facts about the collection from which the image comes), she decides to proceed.

3. A textbook publisher want to use photographs taken by John Collier for the U.S. Farm Security Administration in a textbook (intended use). He sees that the Rights and Restrictions statement says “Most photographs in this collection were taken by photographers working for the U.S. Government. Work by the U.S. Government is not eligible for copyright protection (see page 5 of the Copyright Office's Circular 1, "Copyright Basics"). However, the FSA occasionally and the OWI frequently bought or otherwise obtained some photographs from other sources. All known information about the source of the images is found in the labels on the photographs.” He double checks the catalog records for the images he wants to use to be sure they are all by John Collier, a photographer who worked for the FSA, and hence for the U.S. government (facts about the image and the collection from which it comes), and decides the images are ok to use.

4. A producer of a documentary film wants to use a cartoon by Gary Trudeau in a film (intended use). The catalog record note says “May be restricted” and provides a link to the Rights and Restrictions Statement that says the all cartoons by Trudeau are under copyright (facts about the image and the rights asserted by the artist who made it). The producer decides that his use doesn’t fall under the Fair Use clause and contacts Trudeau for permission.

5. An author of a coffee table book on the American homefront during WWII wants to use a photograph by Wide World from the New York World-Telegram and Sun Photograph Collection showing Rita Hayworth and Marlene Dietrich serving food to soldiers in a Hollywood canteen (intended use). (LC-USZ62-113250 ) After reviewing the Rights and Restriction statements for both the New York World-Telegram and Sun Photograph Collection and Wide World (facts associated with the image, the collection from which it comes, and the company that made it), he decides to accept the risk of using a Wide World image that is not marked with a copyright notice and for which no registration has been found. However, after considering publicity rights, he decides to check and see what rights may be held by the estate of Rita Hayworth and Marlene Dietrich before using the image.

6. A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940“ (LC-USZ62-117149) to show her architectural history class (intended use) sees that image doesn’t include any copyright notice or stamp nor a name of a photographer or publisher (facts about the image). However, she decides this isn’t a problem since she believes her intended use is ok under the Fair Use fact clause. An advertiser who wants to use the same picture on a t-shirt decides not the take the risk of using the image, given that his use is commercial and reliant upon the one image (intended use).

Top of Page Top of Page
2. This all seems complicated when all I need is for you to sign a form giving me permission!

The Prints & Photographs Division cannot sign permission forms because, with one exception (the only exception is the Seagram County Court House Archives), it does not grant or deny permission to publish or otherwise distribute material from its collections.

The Prints & Photographs Division generally does not own rights in its collections (the only exception is the Seagram County Court House Archives).
As a publicly supported institution, the Library does not charge permission fees for use of material from the collections.
Since the Library does not require that you receive its permission before using an image, the only permission you need is what may be required from the copyright owner or donor, independently of the Library.

It can, indeed, be complicated to figure out whether an image can be used. One problem is that the copyright law traditionally was written for books and is increasingly written for music and film, profitable media for the entertainment industry. The law has to be “interpreted” to determine application to photographs and prints, and that’s not always so clear, as there is little case law regarding images to draw on for precedents. The other problem is that there are so many “orphan” images that lack information needed for determining rights status or rights owners.
Top of Page Top of Page
3. If it displays for me off site does it mean it’s ok to use?

The Library displays jpegs and tiffs offsite for those images for which a rights analysis shows:

that there are “No known restrictions,” OR
that the copyright has expired, OR
that the creator has released his rights OR
that the creator has agreed to allow his images to be displayed but still retains the publication rights.
Examples:
William C. Brumfield Photograph Collection [view rights and restrictions statement]
the William P. Gottlieb: Photographs from the Golden Age of Jazz available on the American Memory site [view rights statement]) OR
that the vast majority of images in a large collection are not restricted, even though the rights statement advises about select cases where restrictions might apply; with these collections, no one has ever successfully claimed such rights.
Examples:
Farm Security Administration/Office of War Information Collection
Theodor Horydczak Collection.

While the overwhelming majority of images that display jpegs and tiffs off-site fall into the first three categories, be sure you haven’t wandered into one of the few collections in the fourth category. Moreover, although the fact that jpegs/tiffs display off-site may offer some clues as to the rights status of an image, you will still need to make your own determination. As always, you need to consider the rights issues, incuding copyright, privacy, publicity and related rights in light of your intended use.
Top of Page Top of Page
4. How should I credit the Library as the source of the images I’m using?

When material form the Library’s collections is reproduced in a publication or website or otherwise distributed, the Library requests the courtesy of a credit line.

Ideally, the credit will include

reference to Library of Congress, and
the specific collection which includes the image, and
the image reproduction number (negative, transparency, or digital id number).

Such a credit furthers scholarship by helping researchers locate material and acknowledges the contribution made by the Library of Congress.

Example:
Wright Brothers collection, Prints & Photographs Division, Library of Congress, LC-ppmsca-04598.

When space considerations preclude such a caption, shorter versions may be used.
Examples:

Courtesy of the Library of Congress, LC-USZ62-13459
LOC, LC-ppmsca-09756
Library of Congress, C4-2356

Top of Page Top of Page
5. I really want to use an image, but I can’t tell for sure that it’s ok to use. I don’t want to land in jail. What’s the worst that might happen to me if I decide to go ahead and publish it?

The Library is aware of a few cases where a user was told by someone claiming to hold the rights to images in the Library's collections to “cease and desist” publication of the images. When the users requested proof of rights ownership, however, the matter was dropped.

The Library is unaware of any lawsuits involving the use of its historical images.

To establish a prima facie case of copyright infringement, the plaintiff must prove "ownership" of copyrighted material and "copying" by the defendant. (Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (citing Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). A plaintiff establishes "ownership" by demonstrating that the material is "copyrightable" and that he complied with the statutory requirements in securing the copyright. Central Point Software, Inc. v. Nugent, 903 F.Supp. 1057, 1057 (E.D. Tex. I995).

If it is difficult for you to find a rights holder after employing due diligence, it ought to be equally difficult for a claimant to show that a copyright had been secured. The U.S. Copyright Law is available online at: http://www.copyright.gov/title17/circ92.pdf [pdf].

I accept the prize of 1 weeks premium, thank you very much BBS. You can use paypal or using a debit and/or credit card to to compensate me the cash equivilent for one weeks premium which I will then have the fully right to use,trade, and/or sell in a manner I see fit

BigBallinStalin · Post by **BigBallinStalin** » Tue Oct 18, 2011 12:10 am

Crazyirishman wrote:
BigBallinStalin wrote:I second the first one.

Crazyirishman is this week's premium winner!*

*restrictions apply

Spoiler
Copyright and Other Restrictions That Apply to Publication/Distribution of Images:
Assessing the Risk of Using a P&P Image

This document provides guidance on some of our most frequently asked questions about rights to images in Prints & Photographs Division (P&P) collections:

1. Can I use an image that I've found in P&P's collections? (This discussion includes information on how long copyrights last)
2. This all seems complicated when all I need is for you to sign a form giving me permission!
3. If it displays for me off-site (searching from somewhere other than a Library of Congress workstation), does it mean it's ok to use?
4. How should I credit the Library as the source of the images I'm using?
5. What's the worst that might happen if I decide to publish an image whose rights status is uncertain?

The information below applies to use of material in the United States. Use outside the U.S. is governed by the laws of the country in which the material is being used.
1. Can I use an image that I've found in the P&P collections?

The answer to this question involves considering other questions:

What do you know about the rights associated with the image? [more about this]
and
How do you plan to use the image? (For instance, if your use falls under the "fair use" clause in the copyright law, copyright will be less of an issue, though you will need to pay attention to any donor restrictions) [more about this]

Sometimes the answer is very clear. Other times the answer isn't clear at all.

In all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.
1a. What do you know about the rights associated with the image?

When the Prints & Photographs Division has information about the rights associated with an image or a collection of images, it conveys that information to researchers through catalog records and/or rights statements.

Can you find:

An associated catalog record (text giving data about the specific image) in the Prints & Photographs Online Catalog? [more about catalog records]
A rights and restrictions statement giving information about rights? [more about rights and restrictions statements]

If no catalog record data or rights statement is available, you will need to find the rights information related to the image or collection yourself. [more about doing your own evaluation]
Notes Found in P&P Catalog Records
Catalog records may contain:

"No known restrictions on publication"
"Publication may be restricted”

"May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook"
"Rights status not evaluated ..."
Notes with different wording or no note

When P&P staff have received or gathered information pertinent to rights for individual images, notes are added to the text of the catalog records to explain what is known.

Does the catalog record associated with the image include text that says "No known restrictions on publication"?

No known restrictions on publication means that the Library is unaware of any restrictions on the use of the image. There are generally two cases where this phrase is used:

1. There was a copyright and it was not renewed.

Example:

Sample catalog record with no renewal in Copyright Office note

2. The image is from a late 19th or early 20th century collection for which there is no evidence of any rights holder:

There are no copyright markings or other indications on the images to indicate that they were copyrighted or otherwise restricted, AND
The records of the U.S. Copyright Office do not indicate any copyright registration, AND
The acquisition paperwork for the collection does not contain any evidence of any restrictions, AND
Images from the collection have been used and published extensively without anyone stepping forward to claim rights.

These facts do not mean the image is in the public domain, but do indicate that no evidence has been found to show that restrictions apply.

Example:

Sample catalog record with no known restrictions note

Does the catalog record include text that says “Publication may be restricted” and refer to a rights statement? See "Rights and Restrictions statements" below.
Example:
Sample catalog record with pointer to online rights statement

Does the catalog record include text that says “May be restricted: Information on reproduction rights available in LC P&P Restrictions Notebook” (or similar wording). This refers to a notebook that is now online in the form of rights statements. See "Rights and Restrictions Statements," below.
Example:
Sample catalog record with note about Restrictions notebook

Does the catalog record include text that says "Rights status not evaluated. For general information see 'Copyright and Other Restrictions...' (http://lcweb.loc.gov/rr/print/195_copr.html)." This means the Library has not received or gathered information pertaining to the rights status of the image (see "Doing Your Own Evaluation," below).
Example:
Sample catalog record with rights not evaluated note

What if there is a note with different wording from the above examples or no note at all? Catalog records have been created over a long period of time, so wording of rights information may vary. If a record does not contain a rights note, it may mean the Library has not received or gathered information pertaining to the rights for the image and you will need to gather that information yourself (see "Doing Your Own Evaluation," below).

Top of Page Top of Page
Individual Rights and Restrictions Statements

Rights and Restrictions statements written by P&P for specific collections or artists are available online. Look on the Rights and Restrictions Information page or search in the site search box on that page for the name of:

the collection from which the image comes, or
the artist who made it.

If there is no rights statement for a collection, we may not have analyzed it yet. The information below is intended to help you interpret the language found in rights and restrictions statements.

If images were copyrighted and copyright has expired, we say “Images in this collection are considered to be in the public domain.”
Example:
Edward Curtis example rights statement
[view full statement]

If collectively the images meet the criteria for the "no known restrictions" designation, we say "no known restrictions" in the rights and restrictions statement (see information about the meaning of "No known restrictions" above).
Example:
George Grantham Bain example rights statement
[view full statement]

If images have been placed in the public domain by the creator or rights holder, we say that the images are in the public domain in the rights and restrictions statement.
Example:
Carol Highsmith example rights statement
[view full statement]

If images are restricted and the Library has information on how to contact the rights holder for permission, we provide that information.
Example: Ann Telnaes Rights and Restrictions Information
Sample rights statement with contact information
[view full statement]
If the donor of the collection has specified restrictions, we provide that information.
Sometimes the donor’s restriction is on a certain type of use. Example: LOOK Magazine Photograph Collection [view statement]
Sometimes the donor’s restriction is on a certain type of material within the collection. Example: G. Eric and Edith Matson Photograph Collection [view statement]
Sometimes the donor has specified the length of time that the collection is restricted. Example: Brigitte Stelzer [view statement]

Rights statements are sometimes confusing because images within a collection were sometimes made or gathered under varying circumstances. While the vast majority of images in a collection may be analyzed one way, there may be exceptions, and a few images may be analyzed another way.

Example:
U.S. Farm Security Administration/Office of War Information/Office of Emergency Management/Resettlement Administration Black & White Photographs Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Example:
Theodor Horydczak Collection Rights and Restrictions Information
Sample rights statement where different rights restrictions may apply to a portion of the collection
[view full statement]

Top of Page Top of Page
Doing Your Own Rights Evaluation

When the Prints and Photographs Division has not provided catalog notes or rights statements, you will need to find the rights information related to the image or collection yourself. You'll need to gather whatever information you can about the image.

(Reminder: in all cases, it is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.)
This section covers:

Was the image made by the U.S. government?
Or do you have (or can you get) copyright registration information for the image?
Searching for copyright information
If not, do you think the item is published or unpublished?

How long copyrights last
Situations where there is simply insufficient information
What about copying from a book or other published source?
Finding more guidance

Was the Image Made by the U.S. Government?

Is there a credit on the image that indicates a U.S. federal agency or military service?
Example:
Sample catalog record where image was made by U.S. military service (Army Signal Corps)

The U.S. Copyright Office information says that "Works by the U.S. Government are not eligible for U.S. copyright protection." (Circular 1 [pdf], "Copyright Basics," page 5.)
Or Do You Have (Or Can You Get) Copyright Registration Information for the Image?

Evaluating the rights status of an item is easy when the name of a copyright claimant and the copyright registration number and date is found on the image or in the catalog record that describes it.

Example: A catalog record with copyright date and copyright registration number.
Sample catalog record with copyright number and copyright date recorded
Searching for Copyright Information

To determine whether you can get copyright information if it is not in the catalog record or on the item, you can

search the records of the U.S. Copyright Office yourself, or
hire someone to perform a search [see, for example, P&P's list of searchers] or
pay the Copyright Office for a search.

Further information about copyright searching is available in U.S. Copyright Office Circular 22 [pdf], "How to Investigate the Copyright Status of a Work," and from the Search Division of the U.S. Copyright Office (telephone 202-707-6850). Searches cannot be considered conclusive but will show a good faith effort.

If you find copyright registration information, the next step is to determine how long that copyright protection would last (see How Long Copyrights Last, below)
In the Absence of Copyright Registration Information, Do You Think the Item is Published or Unpublished?

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

Published

While the term "published" is not explicitly defined in the copyright law before 1976, the 1976 Copyright Act defined 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."

The authorization of the creator is required for an item to be considered published. 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.

Unpublished

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

Snapshot photographs taken by Harvey Wiley (1844-1930).
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.)

Based on what you conclude about whether the work in question is published or unpublished, the next step is to determine how long the copyright protection would last.
How Long Copyrights Last

You can apply facts about the duration of copyright to determine if a copyright has expired or is still in effect. The full copyright law is available from the U.S. Copyright Office web site at http://www.copyright.gov/, as are circulars that explain specific aspects of the law, including these circulars, which deal with duration of copyright:

Circular 1, Copyright Basics [PDF file; 769]
Circular 15, Renewal of Copyright [PDF file; 136 kb]
Circular 15a, Duration of Copyright [PDF file; 187 kb]
Circular 15t, Extension of Copyright Terms [PDF file; 19 kb]

The following facts are drawn from the circulars listed above:

Works published or registered in the U.S. before 1923 are now in the public domain.

Explanation: According to the Copyright Act of 1976, works registered for copyright or published with a copyright notice were protected for a maximum of 75 years of copyright protection, assuming the copyrights on the works were renewed (28 years first term plus 47 for the second, if renewed). Public Law 105-298 enacted in October 1998 increased the maximum to 95 years [28 years first term and 67 for the second, if renewed]. Before 1998 the longest amount of time a work could be protected was 75 years, so works before 1923 were no longer protected (1998 minus 75 years equals 1923). When the law changed, the 1923 date was ‘frozen” and will remain so until 2018 [2018 minus 95 equals 1923]. Starting in 2018 the date that works are no longer protected will again change yearly, being calculated as the current year minus 95 years.

Works published with notice or registered in the U.S. from and including 1923 through 1963 are now in the public domain unless the copyright was renewed, in which case they are protected for 95 years from the copyright or publication date. A copyright search is required to establish if the item was copyrighted and that the copyright was renewed (see information above about copyright searching ).
Works published with notice or registered between January 1, 1964 and December 31, 1977 are protected for 95 years.

Note: In some interpretations the fact that no copyright notice is found on the item that was published from 1923 through 1977, means that the item has passed into the public domain (see, for instance, Cornell’s chart (link below) on when works pass into the public domain). The pre-1978 copyright law required that a copyright notice be placed on a work as way to alert potential users that permission was needed. The criterion of the copyright notice is easy enough to apply to books, but a bit tricky with images, since the original work may have had a copyright notice which was not reproduced on subsequent copies or the copyright may have been on the work in which the image appeared, rather than on the image itself. The U.S. Copyright Office literature states that "Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time.” (Circular 3 [pdf], "Copyright Notice," page 2).

If your CC screen name/account name/identity in any way, shape, or form is "Crazyirishman", you are not eligible for this week's premium.

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5).

If you think the item should be considered unpublished, this guidance from the U.S. Copyright Office applies:

Works created before January 1, 1978 but not published or registered by that date are protected by copyright law for the life of the creator plus 70 years. (Circular 1 [pdf], "Copyright Basics, " page 5)

Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years. (Circular 1 [pdf], "Copyright Basics," page 5)

Situations Where the Image Was Made "For Hire" or Is an Anonymous or a Pseudonymous Work

One complicating factor is when someone makes an image for someone else (a work "for hire"). The U.S. Copyright Office information has this to say about such situations: Works made for hire may be protected by copyright by the employer, not the employee. (Circular 1 [pdf], "Copyright Basics," page 2). The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.
Foreign Works

For use within the United States, the following guidelines apply:

Works published outside the United States before July 1, 1909 are considered to be in the public domain. [Fishman chapter 18.12 and 18.15]
Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain. [Fishman, chapter 18.13 and 18.15]
Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain. [Schultz, p. 219; Office of Public Sector Information web site - http://www.opsi.gov.uk/about/faqs.htm disclaimer notice]

Use Outside the United States

Through various international treaties, most nations have established reciprocity with regard to copyright protection. According to the U.S. Copyright Office, “Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.” (Circular 38A [pdf], "International Copyright Relations of the United States," page 8.) If your use is going to take place outside the United States, you will need to be aware of the laws of the country in which you will be using the material and the treaties and conventions in which it participates. The list of U.S. copyright relations as of 2003 that is available in Copyright Circular 38A may be of assistance: Circular 38A [pdf].
Situations Where There is Simply Insufficient Information

Unfortunately, many P&P images lack information on the image or associated with the image (particularly the date of creation or the name of the individual or firm that created the image) to help with rights evaluation.

Example:
Masterpieces of Art building, New York World's Fair, 1939-1940
Sample catalog record for item which lacks creator or rights holder identification
These images, sometimes called "orphan works," are the most vexing to researchers trying to determine rights. You will need to consider what you know about when and why the image was created, what you plan to use the image for, and then assess the risk of using it for that purpose.

Consider whether the image has been published by other researchers. Repeated publication without a rights holder making a claim may lessen the liability of users.

Request a copyright search, even if you have little information to go on. The paperwork from the Copyright Office could show your good faith effort to establish the rights status of the image.
Record the type of searching you have done and what you did or didn't find, so you can demonstrate you used due diligence in searching for the rights holder.

It may or may not help to know that the problem is so vexing that the U.S. Copyright Office recently opened an examination of issues related to orphan works, which it defined as those whose owners are difficult or even impossible to locate. (http://www.copyright.gov/orphan/)
What About Copying One of P&P's Images from a Book or Other Published Source?

If you are planning to copy and publish an image from a copyrighted, published source (e.g., a book), you should check with the publisher, since technically it owns the rights to the version appearing in the book--though few publishers realize that or seem to wish to control such copying.
Finding More Guidance

Information is available from the U.S. Copyright Office web site at http://www.copyright.gov/.

The Prints & Photographs Division and the U.S. Copyright Office, both based at the Library of Congress, are precluded from offering interpretations of the copyright law, even though such interpretations are often helpful. Others have offered such interpretations, including:

A chart laying out when items pass into the public domain published by the Cornell Copyright Information Center [view chart] . disclaimer notice (See note above about the interpretation of publication without copyright notice found on this chart.)

A book written by professional picture researcher Scott Tambert: How to Use Images Legally http://www.pdimages.com/law/ disclaimer notice

John Schultz and Barbara Schultz, Picture Research: A Practical Guide. N.Y.: Van Nostrand, 1991. [call number: TR147.S38 1991 P&P] This book, for instance, summarized the problem of the lack of precise copyright/publication information when it comes to images:

...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.... ( p. 216).

Stephen Fishman, The Public Domain: How to Find & Use Copyright-free Writings, Music, Art & More. 2nd ed. Berkeley, CA: Nolo, 2004. [LC call number: KF3022.Z9 F57 2004]

Top of Page Top of Page
1b. How do you plan to use the image?

After you have gathered whatever facts are available about the rights associated with the image, consider how you plan to use the image.
This section covers:

Could your use be considered “fair use”?
How “commercial” is your use?
Privacy and publicity rights

Could your use be considered “fair use”? Section 107 of the U.S. Copyright law contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. (Copyright fact sheet on fair use, http://www.copyright.gov/fls/fl102.html)

Example: A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940 “ (LC-USZ62-117149) to show her architectural history class decides that her intended use is ok under the Fair Use fact clause.

How “commercial” is your use? In general, the more money you make the more at risk you are. One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies and thereby benefit economically. If your product will generate a lot of income, the rights holder has lost that income. If the expected profit is low, rights holder’s loss is low.

Example:
An advertiser wants to use the “Masterpieces of Art building, New York World's Fair, 1939-1940 (LC-USZ62-117149) on a t-shirt decides not to take the risk of using the image, given that his use is commercial and reliant upon the one image. A scholar who wants to use the same image for a scholarly book on World’s Fairs decides to take the risk of using the image, since his use is not commercial and the image is one of many in the book.

If you are using an image for advertising, will make money by using an image of a well-known person, or using an image in a way that may misrepresent or embarrass a living person, you need to consider privacy and publicity rights.
Privacy rights protect living people from unauthorized use of their image that is intrusive or embarrassing. As John and Barbara Schultz point out that: “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]
Publicity rights protects a person’s right to benefit from the commercial value connected with an individual’s name, image, or voice. John and Barbara Schultz point out that: " 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]
More information on privacy and publicity rights is available in the Library of Congress online “Legal” notice at http://www.loc.gov/homepage/legal.html# ... _publicity

Some examples of making use determinations

1. A publishing company wants to copy, reprint, and sell as a postcard (intended use) a photograph copyrighted before 1923 (facts about the image). It decides that since the copyright has clearly expired it is ok to do so.

2. A private citizen wants to copy and make reprints of baseball images from the Bain Collection and sell them on Ebay (intended use). After seeing that the Rights and Restrictions Statement says “No known restrictions” and weighing the publicity rights that may be held by heirs of the players (facts about the collection from which the image comes), she decides to proceed.

3. A textbook publisher want to use photographs taken by John Collier for the U.S. Farm Security Administration in a textbook (intended use). He sees that the Rights and Restrictions statement says “Most photographs in this collection were taken by photographers working for the U.S. Government. Work by the U.S. Government is not eligible for copyright protection (see page 5 of the Copyright Office's Circular 1, "Copyright Basics"). However, the FSA occasionally and the OWI frequently bought or otherwise obtained some photographs from other sources. All known information about the source of the images is found in the labels on the photographs.” He double checks the catalog records for the images he wants to use to be sure they are all by John Collier, a photographer who worked for the FSA, and hence for the U.S. government (facts about the image and the collection from which it comes), and decides the images are ok to use.

4. A producer of a documentary film wants to use a cartoon by Gary Trudeau in a film (intended use). The catalog record note says “May be restricted” and provides a link to the Rights and Restrictions Statement that says the all cartoons by Trudeau are under copyright (facts about the image and the rights asserted by the artist who made it). The producer decides that his use doesn’t fall under the Fair Use clause and contacts Trudeau for permission.

5. An author of a coffee table book on the American homefront during WWII wants to use a photograph by Wide World from the New York World-Telegram and Sun Photograph Collection showing Rita Hayworth and Marlene Dietrich serving food to soldiers in a Hollywood canteen (intended use). (LC-USZ62-113250 ) After reviewing the Rights and Restriction statements for both the New York World-Telegram and Sun Photograph Collection and Wide World (facts associated with the image, the collection from which it comes, and the company that made it), he decides to accept the risk of using a Wide World image that is not marked with a copyright notice and for which no registration has been found. However, after considering publicity rights, he decides to check and see what rights may be held by the estate of Rita Hayworth and Marlene Dietrich before using the image.

6. A teacher who wants to obtain a copy of the photograph “Masterpieces of Art building, New York World's Fair, 1939-1940“ (LC-USZ62-117149) to show her architectural history class (intended use) sees that image doesn’t include any copyright notice or stamp nor a name of a photographer or publisher (facts about the image). However, she decides this isn’t a problem since she believes her intended use is ok under the Fair Use fact clause. An advertiser who wants to use the same picture on a t-shirt decides not the take the risk of using the image, given that his use is commercial and reliant upon the one image (intended use).

Top of Page Top of Page
2. This all seems complicated when all I need is for you to sign a form giving me permission!

The Prints & Photographs Division cannot sign permission forms because, with one exception (the only exception is the Seagram County Court House Archives), it does not grant or deny permission to publish or otherwise distribute material from its collections.

The Prints & Photographs Division generally does not own rights in its collections (the only exception is the Seagram County Court House Archives).
As a publicly supported institution, the Library does not charge permission fees for use of material from the collections.
Since the Library does not require that you receive its permission before using an image, the only permission you need is what may be required from the copyright owner or donor, independently of the Library.

It can, indeed, be complicated to figure out whether an image can be used. One problem is that the copyright law traditionally was written for books and is increasingly written for music and film, profitable media for the entertainment industry. The law has to be “interpreted” to determine application to photographs and prints, and that’s not always so clear, as there is little case law regarding images to draw on for precedents. The other problem is that there are so many “orphan” images that lack information needed for determining rights status or rights owners.
Top of Page Top of Page
3. If it displays for me off site does it mean it’s ok to use?

The Library displays jpegs and tiffs offsite for those images for which a rights analysis shows:

that there are “No known restrictions,” OR
that the copyright has expired, OR
that the creator has released his rights OR
that the creator has agreed to allow his images to be displayed but still retains the publication rights.
Examples:
William C. Brumfield Photograph Collection [view rights and restrictions statement]
the William P. Gottlieb: Photographs from the Golden Age of Jazz available on the American Memory site [view rights statement]) OR
that the vast majority of images in a large collection are not restricted, even though the rights statement advises about select cases where restrictions might apply; with these collections, no one has ever successfully claimed such rights.
Examples:
Farm Security Administration/Office of War Information Collection
Theodor Horydczak Collection.

While the overwhelming majority of images that display jpegs and tiffs off-site fall into the first three categories, be sure you haven’t wandered into one of the few collections in the fourth category. Moreover, although the fact that jpegs/tiffs display off-site may offer some clues as to the rights status of an image, you will still need to make your own determination. As always, you need to consider the rights issues, incuding copyright, privacy, publicity and related rights in light of your intended use.
Top of Page Top of Page
4. How should I credit the Library as the source of the images I’m using?

When material form the Library’s collections is reproduced in a publication or website or otherwise distributed, the Library requests the courtesy of a credit line.

Ideally, the credit will include

reference to Library of Congress, and
the specific collection which includes the image, and
the image reproduction number (negative, transparency, or digital id number).

Such a credit furthers scholarship by helping researchers locate material and acknowledges the contribution made by the Library of Congress.

Example:
Wright Brothers collection, Prints & Photographs Division, Library of Congress, LC-ppmsca-04598.

When space considerations preclude such a caption, shorter versions may be used.
Examples:

Courtesy of the Library of Congress, LC-USZ62-13459
LOC, LC-ppmsca-09756
Library of Congress, C4-2356

Top of Page Top of Page
5. I really want to use an image, but I can’t tell for sure that it’s ok to use. I don’t want to land in jail. What’s the worst that might happen to me if I decide to go ahead and publish it?

The Library is aware of a few cases where a user was told by someone claiming to hold the rights to images in the Library's collections to “cease and desist” publication of the images. When the users requested proof of rights ownership, however, the matter was dropped.

The Library is unaware of any lawsuits involving the use of its historical images.

To establish a prima facie case of copyright infringement, the plaintiff must prove "ownership" of copyrighted material and "copying" by the defendant. (Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (citing Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). A plaintiff establishes "ownership" by demonstrating that the material is "copyrightable" and that he complied with the statutory requirements in securing the copyright. Central Point Software, Inc. v. Nugent, 903 F.Supp. 1057, 1057 (E.D. Tex. I995).

If it is difficult for you to find a rights holder after employing due diligence, it ought to be equally difficult for a claimant to show that a copyright had been secured. The U.S. Copyright Law is available online at: http://www.copyright.gov/title17/circ92.pdf [pdf].
I accept the prize of 1 weeks premium, thank you very much BBS. You can use paypal or using a debit and/or credit card to to compensate me the cash equivilent for one weeks premium which I will then have the fully right to use,trade, and/or sell in a manner I see fit

Thank you, Crazyirishman. I eagerly await your financial contribution to my CC account.

Give Someone Premium Week

Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week

Re: Give Someone Premium Week