More and more we are using images to enhance text-based documents, annual reports, Web sites and blogs. As a universal rule, most images are protected by copyright laws around the world and permission is required to use the image as is, or to adapt it. Let’s look at some of the specifics surrounding this general rule.
U.S. Copyright Act
Images may be described in various manners. Under the U.S. Copyright Act, images of various sorts are called “pictorial, graphic, and sculptural works”. These works are defined to “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” So illustrations, photographs, charts and the like, are all protected by copyright.
The full range of rights attach to owners of these works. The owner of copyright has the exclusive rights to do and to authorize the reproduction of the images, prepare new works based on the original works, distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; and to display the works in public.
Using Book Covers
A common occurrence in libraries is using the images of book covers in catalogues and bibliographies. Is it permissible to scan the cover of a book for these and other similar purposes? How about saving a copy of the cover from the publisher’s Web site? Scanning an image/book cover is a reproduction of a work as is copying that image/cover from a Web site. Would this be considered fair use? As fair use is an analysis based upon the circumstances in each particular case, you would have to analyze your own situations of using book covers and determine whether each use would qualify under the four fair use factors. Many organizations are comfortable applying fair use whereas others want to be 100% sure that their uses are within the law. If you fit in this latter category, approach the book publisher and see whether they own the copyright in the cover art or whether you have to contact the creator directly.
Images on Blogs
Does the use of an image on your blog require permission? Certainly, if the image is part of the design of your blog and/or repetitively used or adapted for your use, you will need permission to use the image. If the image is part of a particular posting in a blog, you will need to apply the fair use factors and determine on a case-by-case basis whether your use requires permission.
Course Materials and Learning Management Systems such as Blackboard
Learning material is often enhanced by the use of images. In a corporate setting, the application of fair use to using images in course materials (especially repeated use of those materials) would be less acceptable, whereas the one time/one semester use of an image in a university course may more likely be considered fair use.
Do You Always Need to Obtain Permission?
Those familiar with fair use know that it is always up to a court of law to determine its applicability in any one situation. As such if you need reassurance or are in doubt, it is always best to obtain permission. There are a few circumstances when you do not need permission. If the image you are using is in the public domain, a U.S. federal government image (though not all government works are in the public domain), or the copyright owner has clearly (and reliably) stated that you may freely use the image without obtaining permission.
To complicate matters, in the U.S., the creator of a work of visual art has additional rights set out in the Copyright Act. These are called moral rights and allow an artist to have his name on his work and to prevent modifications that may be prejudicial to the artist’s reputation or honor. A work of visual art is: “a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, and “a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” This does not include a “poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication”, or any work for hire (i.e., work made in the course of employment duties.)
The moral rights come into play when you change a photograph from color to black and white, or you manipulate a digital drawing, or omit the artist’s name from a print or drawing. Under the definition of work of visual art in the U.S., few works used in libraries or in corporate settings would have authors who have moral rights. However, in most countries outside the U.S., authors of all kinds of works from photographs to drawings to business documents to computer software all enjoy moral rights. Thus, when using images in other countries or on Web sites or blogs that are accessible around the world, you should respect the moral rights of attribution and integrity.
The Image Collection Manager’s Checklist for Fair Use of Images at https://www.cu.edu/digitallibrary/images/checklist.pdf may assist you in applying fair use to the use of images. Also helpful is The Fair Use Checklist from Columbia University Libraries through its Copyright Advisory Office at http://copyright.columbia.edu/fair-use-checklist.
Read more about copyright in The Copyright & New Media Law Newsletter.
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