Copyrights and Photographs
By Virginia Tolles
In October 2012, I wrote an article about the difficulty of locating the owners of old photographs in order to obtain permission to use their works. The article was published by Loyola University Chicago's Center for Digital Ethics and Policy on their website. There it remained until 2017, when the Library of Congress stepped in and amended the copyright law to provide for using photographs when the owners cannot be identified or located. So, my article is no more (except to me), but the mission has been accomplished! Here is how it appeared back in the day:
When we create websites, we need two things: text and pictures. The text informs, while the pictures draw in the reader and illustrate points made in the text. There is a proper way to acquire and use photographs, ways that often are called into question as society decides how to apply the rules of ethics and copyright to Internet applications.
Many webmasters grab photographs from wherever they can find them, especially from online sources. They mistakenly believe that anything online is in the public domain. It is not. Just as copyright law protects photographs in newspapers and magazines, it protects photographs on the Internet.
Some webmasters believe they may post a photograph as long as they cite the photographer or the source where they found it. Although this is the correct way to handle a quotation, it is not for photographs. A quotation is a very small portion of a complete work, while a photograph is a complete work.
Sometimes, a webmaster finds a photograph but is unable to learn who took it or owns the copyright. Perhaps it is an old photograph without markings to identify the photographer. Perhaps, identifying the photographer reveals he has passed away. Does that mean the picture is in the public domain, or must the webmaster identify and locate the photographer’s heirs?
We need to know what we can do – legally and ethically – to acquire photographs for our websites when the odds seem stacked against us.
What Do the Experts Say?
Definitions. The definition of the word “ethical” is ambiguous. Merriam-Webster dictionary defines “ethical” in four ways, one of which is relevant to this discussion. Ethical is “conforming to accepted standards of conduct”.[i] Does that mean it is alright to use a picture if everyone else is doing so? Dictionary.com offers a clearer definition: “Ethical” is “pertaining to or dealing with morals or the principles of morality; pertaining to right and wrong in conduct.”[ii]
We need to know what is right and wrong when it comes to using photographs that were taken by other people, and that takes us to copyright law.
Legality. Since 1923, federal law has regulated copyrights in the United States. The law has changed several times, but currently is stipulated in the US Copyright Act of 1976, otherwise known as Title 17 of the United States Code.[iii] The Code states, “Copyright in a work… vests initially in the author… of the work… In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author…”[iv] The law is the same for photographs; thus, we need only substitute “photographer” where “author” appears to know where we stand.[v] The Code goes on to say, “Where an author is dead…, the widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren…in which case the widow or widower owns one-half of the author’s interest.”[vi] In short, the death of the photographer does not free up the work for unlimited use.
The duration of a copyright is also important and is specified by Title 17. The law has changed through the years, and that may affect you if you are working with old photographs. For photographs taken after 1978, a copyright lasts for 95 years after the publication date or, if the author was a corporation, for 95 years from publication or 120 years from creation, whichever comes first.[vii]
A Case History
When I first started my websites, Memories of “Hawaii Five-0”[viii] and Remembering Jack Lord[ix], I filled them with pictures. I thought I was on solid ground; after all, my friends and I had purchased the images on Ebay and other online sources, and we had our receipts to prove that we had. But, then, I began to notice that some sellers included statements in their listings to indicate that ownership rights did not convey with the pictures. I decided to find out what those statements meant.
My research let me know that I needed to get permission to use the photographs I was so freely posting. I decided to remove all photographs, unless I either had taken them, myself, or had the permission of their photographers. That left me with only one photograph of Jack Lord, the subject of Remembering Jack Lord.
That was unacceptable to me, but how was I going to obtain permission to use all the photographs I had removed? Of more than fifty photographs I had purchased, I knew the photographers’ names for only six. Two dozen pictures were issued by the networks to newspapers to advertise upcoming episodes of the two series in which Jack Lord starred, Stoney Burke (ABC-TV, 1962-1963) and Hawaii Five-0 (CBS/Paramount Television, 1968-1980). Two pictures illustrated the model car that Steve McGarrett drove in Hawaii Five-0. I had no idea where the rest of the pictures originated.
My first step was to contact the copyright owners of photographs. I contacted the networks that produced the two television series and asked for permission to use the photographs that I had purchased. ABC, which was purchased by Disney in 1995, did not respond to my attempt to contact them. CBS invited me to use screen captures from their website, but those proved to be from the 2010 remake of the series; they did not respond to my renewed request for permission to use pictures from the original series.
I contacted three government agencies, which had published photographs reflecting Jack’s humanitarian efforts on behalf of two of their programs. First, I asked to use a photograph a friend had donated. Jack was an honorary commodore in the Coast Guard Auxiliary, and the picture showed him promoting their volunteer boat examination program. The public affairs director’s initial response was that, as United States Government property, the picture never should have been sold on Ebay. After I explained that it, no doubt, had come from Jack’s 2007 online estate auction and the director looked into the matter, he granted me permission to use the photograph.
I asked the Veterans Administration and Tripler Army Medical Center for permission to use another donated photograph, which promoted their No Greater Love program for recovering veterans. My initial request to Tripler brought a response that the picture was Government property. The Veterans Administration did not reply to my query. When I received neither approval nor denial to my request, I asked if they had a picture that I could use. Neither responded.
I knew the names of two photographers, who had taken several of the pictures I had purchased. My attempts to contact them by various leads brought no responses.
The sponsor of Hawaii Five-0 gave me permission to use their photographs. Ford Motor Company[x] gave me permission to use an advertisement for the 1968 Mercury Park Lane Brougham, the model that McGarrett drove in Seasons 1 through 7. Indulge me while I explain that the car was seen parked before a Ford Tri-Motor, the airplane (circa 1925) that moved aviation out of the bi-wing and canvass body era and into the transcontinental transport era. Receiving permission to use the advertisement on my website was a highlight of the entire permission search.
Having exhausted hope of acquiring permission to use the pictures I had purchased, I began writing other organizations that might have photographs of Jack Lord and asking if they had pictures they could share with me. I wrote the historical society in his hometown; the elementary, high school, and university he attended; the two playhouses where he studied acting; the Metropolitan Art Museum and the Honolulu Arts Council, which have some of his paintings; the New York Public Library; and the University of Southern California, where his papers are archived.
I heard back from only three:
St. Benedict Joseph Labre Catholic Church sent three pictures of the elementary school and church Jack attended and apologized for not being able to send student or class pictures due to a fire that destroyed many of their records in the 1970s.
The Actors Studio apologized for not being able to help but explained that all archival material was donated to a museum when their founder passed away.
The New York Public Library sent a link to a newspaper photo archives. The cost of purchasing pictures from the archives is prohibitive.
Sorting It All Out
Why were the networks and photographers so guarded with their photographs? After all, Stoney Burke aired fifty years ago, and Hawaii Five-0 wasn’t far behind it. It made no sense at that point, yet I knew there was a logical explanation.
Copyright law states that, when an organization hires a photographer to take pictures, ownership in those pictures rests with the organization. That seems clear enough, except that, with the passage of time, it may not be known whether the photographer was hired to take pictures, by whom the photographer was hired, or whether the photographer was working independently.
Over the past decade, attitudes have changed. Photographers now feel that any picture they take belongs to them and claim that they were working independently and not as contract employees. Here is a true story to illustrate: A company hired a photographer to take pictures for use in its advertising campaign. Even though the company paid the photographer, he then demanded to be paid by the magazine carrying the ad for the use of his picture. Here, copyright law collides with contract law. As a result, no one quite knows where ownership of the pictures lies.
The photographers took the photos between forty and fifty years ago. Many of the photographers, like the subjects of their work, have passed away. Ownership of their work has passed to their heirs. Sometimes, the heirs are not as generous as the photographers – if they can be identified and located, at all. Similarly, photographs change ownership. Even if you find the original owner, you have not necessarily found the current owner.
In the past, government documents were held to be in the public domain. One could quote from them or use photographs without obtaining permission or giving credit. That no longer is the case. Today, some are in the public domain, but others are not. The best policy is to check with the issuing agency to make sure the one you want to use is available.
Does this mean that old photographs are lost to the public forever? As the situation now stands, that is how things appear. Unless the photographers and their heirs and the organizations that hired them can reach a meeting of the minds, we may have no more than very expensive scrapbook material.
Where To Go from Here?
Our mission as webmasters is to acquire photographs that we can use legally and ethically. Here are two ideas to help you.
Help in Identifying Copyright Owners. Companies exist to help identify and locate copyright owners; however, their services are expensive—far more costly than many freelance writers and webmasters can afford to pay. A better option is to check with photographic trade groups. Member photographers sometimes register their works, which remain on file.
Some professional digital photographs bear invisible watermarks that can help to identify their photographers through a system developed by Digimarc.[xi] The system reads the watermarks and provides whatever data the camera recorded. Even pocket digital cameras create invisible watermarks. These watermarks can be read by a free graphics utility known as Irfranview.[xii]
Using Stock Photos. Several companies sell stock photos online. At one time, they offered photographs of actors, politicians, and other luminaries. As the courts began to apply copyright law to the Internet, however, those photographs disappeared. Still, those companies can be excellent sources of pictures of general subjects. I purchased the right to use a stunning photograph of the Metropolitan Art Museum, which acquired two of Jack’s works when he was only twenty years old. Here are a few things webmasters need to know about stock photos.
The terms used for the rights conveyed for using stock photographs can be confusing. They do not always mean what their names imply.
“Public Domain” is “the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone.”[xiii] As you conduct your search, you will notice that few photographs truly are in the public domain.
“Copyright-free Images” might sound like they are in the public domain, but they are not unless the duration of copyright has passed without being renewed.
“Royalty-free Images” are those for which you do not have to pay a separate fee each time you use the image. You do, however, have to pay an up-front fee.
“Free Graphics” may not cost money, but they do carry terms and conditions that stipulate how the images can be used. For example, some require you to give the photographer’s name. Some may allow you to use them only for non-commercial purposes.
Editorial versus Commercial Websites
Websites fall into one of two categories: editorial and commercial. Editorial websites “are non-commercial and related to events that are newsworthy or of public interest.”[xiv] Commercial websites advertise goods and services and seek to generate revenue. The fees for using stock photos and the rights conveyed often vary depending on whether the website is editorial or commercial.
Be sure to do your research to make sure you don’t overstep bounds. According to Jennifer McKenzie, who works to enforce copyrights, the best policy is not to “use images you have no rights to without express permission, and read end-user license agreements carefully so you understand permissible use.” [xv]
It is very tempting to do as many do and grab pictures, use them, and never look back. The problem with that approach is that it goes against the principles of ethics; that is, it goes against both the law and society’s belief that taking without permission is stealing and, therefore, is wrong. My decision is to have permission to use any picture I post on my websites. I continue to work to identify photographers and artists who will let me use their pictures. Each time one says “yes,” I feel like I’ve just won the lottery. The effort’s all been made worthwhile.
[i] Ethical. http://www.merriam-webster.com/dictionary/ethical.
[ii] Ethical. http://dictionary.reference.com/browse/ethical.
[iii] Title 17, United States Code. http://www.copyright.gov/title17/.
[iv] Title 17, Chapter 2, Copyright Ownership and Transfer.
[v] Title 17, Chapter 1, Subject Matter and Scope of Copyright.
[vi] Title 17, Chapter 2, Copyright Ownership and Transfer.
[vii] Hirtle, Peter B. “Copyright Term and the Public Domain in the United States, 1 January 2012.” Cornell Copyright Information Center.
[viii] Memories of “Hawaii Five-0”. [merged with www.rememberingjacklord.com in 2018]
[ix] Remembering Jack Lord. www.rememberingjacklord.com
[x] Ford Motor Company. www.fordimages.com
[xi] Digimarc. http://www.digimarc.com/mypicturemarc/download/default.asp
[xii] Infranview. http://www.irfanview.com/
[xiii] Public Domain. http://www.merriam-webster.com/dictionary/public%20domain
[xiv] Miles, Stuart. “Using Images on Your Website? What You Need to Know: Tips From the Experts at iStockphoto.” http://www.pocket-lint.com/news/25549/how-to-use-images-online
[xv] McKenzie, Jennifer. “Are You Using Images on Your Website Illegally?” http://blog.2createawebsite.com/2010/08/16/are-you-using-images-on-your-website-illegally/