COPYRIGHTS AND OTHER RIGHTS IN PHOTOGRAPHIC IMAGES
by Jeremy Rowe ©jeremy rowe 2002
THE IMAGE MARKET
The control of photographs and other visual resources is a vital issue for both private and public collections. The questions and issues related to who "owns" the rights to use and reproduce photographs are complex and can vary significantly depending on acquisition circumstances, age of the image, provenance, status of the previous "owner" and a number of other variables. Physical ownership, copyright and reproduction rights coexist in a continually shifting legal and technological environment. As the market for images continues to grow, it is important to understand the rapidly changing environment in which researchers, collectors, curators, and publishers must work.
The interest in historic images-and their value-has grown remarkably as a result of film documentaries, the awareness of the fine arts market, and the voracious appetite of multimedia for visual resources such as photographs. Digital media, including CD-ROMs, Internet, and the World Wide Web, and the ease of reproducing, retouching and distributing material, has further fueled the demand.
The total market for stock photographs is now an estimated at a billion-dollars-per-year, and historic images represent an important and rapidly growing facet of this market. The high demand and prospects for profit led to the creation of companies that deal in stock images. Several major players have developed in the photographic stock business through consolidation of large stock agencies such as the Bettmann Archive, Liaison, and Digital Stock into huge conglomerate agencies such as:
Bill Gates' Corbis http://www.corbis.com, which controls the Bettmann Archives, Ansel Adams collection and electronic rights for museum collections including the Hermitage. Corbis is aggressively acquiring and marketing both contemporary and historic visual materials.
Getty Images http://www.getty-images.com/ operated by oil company heir Mark Getty.
Other potentially significant forces in the stock photography market are museums, educational institutions, private and public collections, and companies with access to images, such as auction houses. In recent years, the increasing awareness of the potential value of collections of historical images has led many public institutions to grapple with the diverging priorities of providing public access with trying to control access to retain some level of control over their photographic resources.
Policies at many institutions are changing as administrators improve the management of images in their holdings. In addition, cooperative efforts and consortia are forming among private and public institutions to create their own stock photography and marketing groups. One example is the Museum Digital Licensing Collective, Inc. which includes the Amon Carter Museum,
The Historical Society of Washington, D. C., and The New York Public Library among its participants. In addition to coordinating marketing and licensing, such efforts often enhance public access to the collections by supporting digitizing projects and computerization of collections and finding aids.
Private individuals and those with access to images, such as photographic dealers and auctions, have started to create their own stock collections and generate revenue from reproduction and use fees. Also, individuals who have copyright control over images are becoming more aggressive in monitoring uses and collecting royalty, permission, and use fees.
Digital technologies have also created an urgent demand for techniques to control reproduction, such as copy protection and watermarking software. Companies such as Digimarc, Inter Deposit, provide methods to encode ownership information in digital images, and to track their use on the Internet and in print. New tools that permit copyright holders to bill those who view, download, and use digital images are rapidly being developed.
One result of the growing market is an increase in the fees charged for reproduction and use. The large stock agencies have begun to raise prices for images in their collections, and many private and public institutions have followed suit. The charges for use of historical images vary considerably from a few dollars to $200 or more per image. Factors keeping use fees lower is the large number of museums and collections, perceived lower value of public domain compared to contemporary images, and the fact that there may be multiple copies of historical images from which to choose. The use fees tend to be less than industry rates for contemporary commercial photography, though the costs have increased significantly at many institutions in the past few years.
In addition, academic publishers and scholars who previously received free or reduced rate access to images at many collections now frequently face significant charges, and contracts modeled on commercial models. Today, many publishers make authors and researchers responsible for providing reproduction permissions for photographs along with their manuscripts.
Because historic images are a limited resource, the growth of the market is inevitable and fees probably will continue to escalate as the entire system becomes ever more complex.
Copyright and Ownership
For years, many authors and publishers have used libraries and archives as sources of images to illustrate their articles and texts. Typically, they would visit an institution, browse and select photographs, then order copies for publication. The costs often involved the production of a negative and print. Sometimes, researchers were permitted to bring in cameras and make their own negatives or slides.
Occasionally the institution charged a fee for non-academic publications or commercial uses. They usually required a credit line to indicate the source of the image, and sometimes a copy of the published article or book. Rarely was any attention paid to the context of the intended use or accuracy of presentation of the image, and few controls were in place to follow-up on the proposed or future uses of the images.
Today, however, researchers and authors face a daunting task when seeking illustrations, and must address challenging questions such as the following:
- What rights do you obtain when you purchase or acquire a photograph?- If you have a physical copy in hand, can you copy it and use it for your own private or commercial uses?- Can you restrict others from reproducing the image from their original copies?- Can you sell copies of the photograph for others to use?- Can you display the image in your office reception room or public space?- Can you post a scanned copy on your Web page or as part of an electronic publication?- Can you continue to use copies after you sell the original image?- If you sell or buy an image through an auction or on consignment, do you or the auction house control future publication of the image?
Several factors are involved in determining ownership of a photograph, including copyright law, the ownership status of the seller or donor, and the rights that are transferred as a result of sale or gift. Copyright and intellectual property law has the greatest potential impact, and is important to understanding ownership and use of photographs. Copyright and intellectual property laws vary from country to country; those in effect in the United States will be considered here.
United States copyright laws apply to tangible, fixed works, such as photographs, and assigns ownership to the creator, or to the hiring agent in specific cases defined as "work for hire." The duration of ownership depends on the age of the image and the copyright laws that were in effect when the image was created (see table at http://www.library.yale.edu/~okerson/pubdomain.html).
An important factor in determining the length of time a work is protected is whether or not it was published. Until recently, copyright assigned ownership for a finite time and barring unusual circumstances, lasted for a maximum of 75 years for items created and published before the 1976 revision of the copyright law. For material originally created and published after 1976, copyright protection is for the life of the creator plus 50 years. Unpublished materials, such as diaries and family snapshots, were protected for the life of the creator plus 50 years. Congress, however, delayed initial implementation of this provision. Under the copyright revision that took effect in 1978, the copyright holder of unpublished material was given control of use until 2003 regardless of the original creation date.
After the time specified under copyright law, ownership control lapses, and the item enters the public domain; the original creator or copyright holder has little or no legal ability to control subsequent use.
Though copyright notices are no longer required, before 1986 failure to include a copyright notice, or use of an incorrect notice potentially shortens the period of copyright protection. Materials that can be verified as meeting either of these criteria may have fallen out of the control of the photographer of copyright holder. This creates yet another category of public domain as potential resources for researchers and publishers.
The Digital Millennium Copyright Act, passed on October 1998, has significantly changed public domain timelines and is an excellent example of the shifting legal environment. The act (strongly supported by businesses with valuable intellectual property about to enter the public domain, such as Disney, and the estates of creative individuals such as the Gershwins) places a 20 year moratorium on materials entering the public domain. The effect is to freeze January 1923 as the date prior to which materials lapse from copyright protection and enter the public domain. The net effect is that no new material will enter the public domain until 2018. The impact on unpublished materials is unclear as the act does not specifically address such material. A further complication is a recent legal challenge to the extension of protection outlined in the Digital Millennium Copyright Act that, if successful, would return everything to the 1976 calendar. Clearly, the copyright environment is changing and process of researching copyright status is becoming even more complex.
Once a work such as a photographic image has been created and fixed in a tangible form, it is protected under copyright law and several very important rights are assigned to the copyright holder. They may permit or restrict the following:
- 1. Copying or reproducing the work (such as print or electronic reproduction of a photograph);
- 2. Preparing derivative works (such as scanning to create a digital copy of a photograph);
- 3. Distributing or marketing copies of the work (such as posting digital copy on the Internet, selling posters or postcards, or copy prints of the image);
- 4. Publicly displaying the work (such as in museum or gallery).
Each of these four rights is separate and the copyright holder or designee may permit or restrict others from using the material in any or all of these ways. In addition, they may retain, assign, or license each of the rights listed below, in whole or part, to another party:
- License a single right, such as reproduction for publication, or involve all aspects of copyright ownership for a given work.
- Restrict use to a single instance, such as one print edition, or unlimited use, such as permitting unlimited print and electronic reproduction.
- Grant rights for a finite period of time, or for unrestricted use.
Obtaining permission can be a complex and sometimes frustrating process, particularly if any or all of the rights have been transferred to another party. Unfortunately, there is no central repository of information about the rights held or transferred, and in many cases significant research is required to locate the owner of the copyright. In addition, there is no requirement for the copyright holder to grant permissions or to respond to requests. An additional frustration arises from the fact that failure of the copyright holder to respond does not imply permission.
There is one exception to the requirement to obtain prior permission of the copyright holder for any of the four categories of uses outlined above, defined as fair use. The fair use exemption permits some types of educational, reporting, critical uses of materials still protected under copyright law (for additional information on "fair use" see 17 USC Sec. 107). One of the key factors in "fair use" is the potential impact of the use on the marketability of the item in question. In the digital environment building a case for "fair use" is troublesome for several reasons:
- the ease of duplication of digital files,
- the difficulty in controlling duplication of digital files,
- the commercial nature of the Internet has made the market impact test of "fair use " difficult for any materials available on the WWW.
Digitizing a photograph creates a derivative work, a right not addressed under fair use that requires permission of the copyright holder. Also, a compelling case can be made that any digital posting has the potential to significantly effect the market for a given image. It would be difficult to show that making a digital copy of a photograph available on a CD-ROM or on the WWW would not have an effect on the potential market for the work.
Unfortunately the laws and policies change much slower than technology. Most were established long before the advent of Internet and digital imaging, and are still grappling with issues related to past developments such as photocopying and video. Recently, however, international agreements have addressed the problems, and congress has moved to amend and update copyright law. Researchers and publishers should be aware of the changes, and periodically monitor the revisions.
How copyright Affects Photographic Researchers
Virtually every original prints of historical photographs published before January 1923 is now in the public domain. This means that anyone possessing an original image from 1922 or before can copy, prepare derivative works, distribute, or display the photograph without needing to obtain permission. The most common method of controlling reproduction of public domain images is to limit access to the original photograph.
Access and use of unpublished materials or those created after January , 1923 can be much more complex, since each of the four rights of the copyright holder can be controlled separately. For example, it is possible to acquire a physical print of an image through purchase or gift, without obtaining any other rights to the image. The copyright holder may retain any or all of the four supplemental rights associated with subsequent use of the work.
Copyright has little impact on reproduction of historical images in the public domain from public or private collection, despite the many policies and release forms involved. Here, too, limiting access to the original print is the most common method used to control reproduction and use of images. Savvy collections have begun to indicate in their release forms and reproduction contracts that they only provide access, and in no way warrant copyright permission. The researcher or publisher is held responsible to research copyright status, and obtain any necessary licenses or permissions needed for the intended use.
Many photographers and artists and their estates, such as those of Ansel Adams, Edward Weston, Georgia O'Keefe, Dorothea Lang, retain, and have begun to aggressively protect the rights to their images. An interesting sidebar is that until recently, many photographers who worked for government agencies, for example the Farm Security Administration or National Parks Service, assigned rights to the images that were created to the agency as part of their grant or contract. In such cases, use of the images would be governed by the agency policies and not under the control of the individual or their estate. The ease of clearance and use for federally owned material make collections such as the National Archives and Library of Congress extremely popular.
Moral rights extend beyond the life of the creator and are becoming a more important factor in use of photographs, as the U.S. and other countries coordinate their copyright policies under the World International Property Organization (WIPO). The concept of moral rights varies significantly across countries. In general, they transcend the assignable copyrights and address the ability of the author or creator to claim ownership and object to distortion, mutilation, modification, or derogatory action related to their honor or reputation. Some countries such as France, include the right of retraction - the authority for the creator to remove the work from public view.
Another issue currently in flux is the right of publicity, and the use of the likeness of recognizable personalities such as Charlie Chaplin, W. C. Fields, James Dean, as well as unauthorized pictures of private individuals. Strong lobbying, particularly by the entertainment industry and estates of prominent people, has led to increasing control of the use of photographs by individuals and their estates. Again, even though you own an original copy of a photograph, the right of publicity may limit your ability to use the image without obtaining permission from the subject.
An interesting variation of individual control of their likeness has arisen in Hopi Tribal Resolution H‑70‑94 (adopted May 23, 1994) and policy documents from the Hopi Cultural Preservation office. Under the Native American Graves Protection and Repatriation Act (NAGPRA), the Hopi demand that;
archival records, including field notes, audio tapes, videotapes, (and)photographs; which describe and depict esoteric ritual, ceremonial, andreligious knowledge, be placed under restriction by museums and otherrepositories for public access and hereby are declared to be the culturalproperty of the Hopi people.
The Hopi seek to limit exploitation of their culture and beliefs by controlling access to collateral materials such as photographs. The tribe has worked for years with local museums and public collections, educating archivists and assisting in identifying sensitive materials whose access and use should, in their view, be restricted. The interesting factor in this approach is the claim of a broader moral right to control access, instead of the trail of ownership upon which copyright is based.
Case law which addresses moral rights and rights of publicity is relatively sparse, so legal interpretations are the primary guide to decisions about liability and potential risks associated with the use of non-public domain photographs and images of individuals.
The copyright and intellectual property environment is constantly evolving to reflect changes in technology and use practices. The pace of this movement has increased dramatically with the advent of scanners, digital reproduction, and the Internet. The Internet evolved as a tool for education and research. The recent transition from non-profit education to a commercial entity has dramatically altered the tone of the Internet to one emphasizing ownership and control. Other factors that are effecting the rate of change in the area of copyright licensing and use include:
-Microsoft and Corbis entering the field of digital image licensing.-Enhanced tracking and reporting capabilities of watermarking software and related services.-Increasing marketplace for licensing and use of images.-Aggressive efforts of publishers and producers in the review and recommended revision of copyright law, and U. S. participation in international copyright and intellectual property treaties.-Ease of digital copying and distribution and the potential for loss of revenue, attribution, and subsequent control of uses once material has been posted without permission.
In 1986, the United States joined an international copyright and intellectual property treaty, the Berne agreement, which has further complicated the ownership and use environment. For example, copyright notices are no longer required to be displayed with images to maintain protection. This means that even if a copyright notice is not displayed the creator or designee still has the right to control use of the image, and permissions are required prior to use.
Researching the copyright status of a photograph is a vital part of preparing for print or electronic publication. Currently, the process of obtaining permissions is less complex than for print than for electronic publication. Some of the steps are listed below:
-Identify the intended uses as completely as possible - will the material see print or electronic distribution, use an academic journal or for-profit publisher, what is the size of print run, etc. Also, will supplemental materials such as video or CD-ROM, or on-line presentation be a component of the project?
-Identify the warranties and permissions made by the collection. Do they provide access to the image, copyright permissions, or both. Also, for materials still protected by copyright, such as published photographs created after January 1, 1923 or unpublished images, any donor or gift stipulations that may limit use should be noted. If necessary, obtain contact information for, and permissions from parties who may have an ownership claim to the images before publication.
-Check the current length of Copyright duration and date for public domain status. Determine whether the material was published prior to 1978. If not, copyright protection may extend until at least 2003 or the life of the creator plus 50 years whichever is longest. If the material was not published, use will likely require permission from the copyright holder.
-Note whether the image is from an original print or copy print. Many collections have been built on copy prints from other collections. Rarely are reproduction rights transferred along with the copy print. Reproduction from published material may also involve the additional copyright claim of the author or publisher. Whenever possible, for reasons of both ownership and reproduction quality, locate and work with an original print rather than a copy.
-Determine if the work was created by a well known photographer or publisher. If so, the photographer, estate, or designee may retain ownership of some or all rights needed for publication. Also, materials created in other countries may be more heavily influenced by moral rights, potentially limiting some uses without additional permissions.
-Identify any fees for duplication and reproduction that are associated with the intended use. Also, note whether copies of the publication are required by the collection. Identify necessary credits and insure that they are included throughout the reproduction and publication process.
-Get all agreements and stipulations in writing from collections and copyright holders. Many publishers now require verification of permissions, such as reproduction, display or other rights that are involved in a given project.
-For your protection, maintain a file of correspondence related to your research, including written permissions and fees paid.
Government collections, such as the National Archives, have long been popular sources since materials produced under federal grants and contracts typically have included assignment of rights to government entities. Obtaining rights for print reproduction is relatively straightforward, and other than reusing many of the same frequently reproduced images, raise few concerns as a source for older, public domain material. Recently, however, some subcontractors have begun to grant to government agency permissions for specific use only, and retain other ownership rights. This practice will necessitate obtaining permissions from the copyright holder for such material, adding a new layer of complexity for researchers and publishers, but providing additional control to the copyright holder.
Electronic access to government collections, such as the Library of Congress American Memory project may involve addressing the ownership claims of the subcontractors who created the digital derivative works by scanning and structuring the image collections and retain at least some ownership rights. The issue of ownership of derivative works has yet to play out in the courts, but appears to hinge on level of creative input in digitizing projects as well as project contracts. This is yet another facet of copyright ownership and control that researchers should pay attention to in the future.
As fees continue to rise and the becomes more complicated, many scholars are seeing the advantage of acquiring original images in their area of interest. When this involves private sources or auction, it is important to ask what policies affect the transfer of ownership, particularly for images less than 75 years old or unpublished material. Relevant questions include:
-What ownership rights reside in the image?
-Who controls any subsidiary rights not associated with the sale?
-Are any ownership rights transferred to the purchaser, or is only the physical copy of the image involved?
-What rights are transferred and what rights, if any are retained, if an auction or dealer is involved? For example, do they retain any rights to reproduce images?
Historical photographs have become a valuable resource for individuals and private and public collections. Hopefully, this essay will promote a general awareness and act as a catalyst for action to clarify policies and action to influence the changing copyright and ownership environment.
©Jeremy Rowe 2002
A Few Additional Thoughts in Response to a Discussion List Query:
The 50 year rule is out of date and applied primarily to material created after 1976. Due to a number of factors and recent revisions to copyright law things have changed, and not surprisingly gotten more complicated. Due to variation in international copyright law, I'll briefly address U.S. issues.
Several factors are involved in determining ownership of a photograph, including copyright law, the ownership status of the seller or donor, and the rights that are transferred as a result of sale or gift.
Once a work such as a photographic image has been created and fixed in a tangible form, it is protected under copyright law and several very important rights are assigned to the copyright holder including the ability to permit or restrict the following:
-1.Copying or reproducing the work (such as print or electronic reproduction of a photograph);
-2. Preparing derivative works (such as scanning to create a digital copy of a photograph);
-3.Distributing or marketing copies of the work (such as posting digital copy on the Internet, selling posters or postcards, or copy prints of the image);
-4.Publicly displaying the work (such as in museum or gallery).
Each of these four rights is separate and the copyright holder or designee may permit or restrict others from using the material in any or all of these ways.
The duration of ownership depends on the age of the image, whether it was published and to some extent the copyright laws that were in effect when the image was created. After the time specified under copyright law, ownership control lapses, and the item enters the public domain; the original creator or copyright holder has little or no legal ability to control subsequent use. After material loose copyright protection, reproduction is limited primarily by controlling access to the original is the case in most institutional collections.
An important factor in determining how long a work is protected is whether or not it was published. The Digital Millennium Copyright Act, passed on October 1998, significantly changed public domain timelines and is an excellent example of the shifting legal environment. The places a 20 year moratorium on published materials entering the public domain. The effect is to freeze January 1923 as the date prior to which materials lapse from copyright protection and enter the public domain. The net effect is that no new material will enter the public domain until 2018.
Under the copyright revision that took effect in 1978, the copyright holder of unpublished material was given control of use until Jan 2003 regardless of the original creation date. The impact of the 1998 revision on unpublished materials is still somewhat unclear as the act does not specifically address such material.
Though copyright notices are no longer required, before 1986 failure to include a copyright notice, or use of an incorrect notice could potentially shorten the period of copyright protection. Materials that can be verified as meeting either of these criteria may have fallen out of the control of the photographer of copyright holder. This creates yet another category of public domain as potential resources for researchers and publishers, but can also create a significant and often complex research task to unravel copyright status for a given image.
Re: corporate collections and contract work in general, in the case of work for hire the copyright for the material is controlled by the hiring agent. Copyright can also be assigned in contracts or transferred in writing, as with a gift or sale from the creator to an assignee. Without records the issue of copyright ownership and licenses is likely open to challenge by either party to be resolved by arbitration or in court if control of the material becomes an issue.
The Digital Millennium Copyright Act does address unpublished material and provides additional protections over the 1978 revisions as follows under sections 302 and 303:
120 years from the creation of the work - pre-1882 unpublished material will no longer protected after December 31, 2002. New material will be effected each year, unpublished material from 1883 will loose protection December 31, 2003, etc.
Works created but not published or copyrighted before January 1, 1978 that are subsequently published before December 31, 2002 are protected until at least December 31, 2047 or until the earliest of the following conditions are met:
-70 years after the death of the author or longest surviving author for joint works.
-95 years after publication for anonymous works or works made for hire.
The definition of publication and it's impact on photographs is somewhat open to interpretation. Are works for hire considered published if presented internally to the hiring agency, or only if presented to the general public? Are they anonymous if uncredited in the publication though known to the agency, etc. Also there are a number of efforts to clarify and challenge several elements of the DMCA that may have some impact on the definitions and there is continual additional movement as the U.S. attempts to comply with international treaties and copyright agreements.
©Jeremy Rowe 2002