Eileen Gifford Fenton
603 Image Databases
Professor Howard Besser
October 27, 1995

Images and the World Wide Web:
A Guide to Copyright Issues Surrounding
the Use of Images in Web Sites for Nonprofit Educational Organizations
October 1995

The following guideline is not legal advice but rather is intended to supply basic copyright information on the use of images in a Web site and an outline of issues and possible solutions where matters are uncertain. This guideline has been created as a student project for the Image Database course at the School of Information and Library Studies at the University of Michigan and builds on an earlier paper for the same course. As copyright issues are tied to the circumstances of the use in question, legal advice on copyright matters can only be provided by a qualified attorney familiar with the circumstances and the applicable law.

This guideline document has at its foundation a basic five step process which can be applied to an image (limited to photographs or slides in this document) identified for potential use in a Web site. This process, presented through a series of questions, involves: 1) determining if the selected image is covered by copyright, 2) examining the nature of the proposed use, 3) locating the owner of the copyright, 4) securing appropriate permission(s), and negotiating and paying the agreed upon fees, and 5) using the image in a manner consistent with the agreement. The expectation is that a reader will not necessarily consult this complete document but rather will review only the relevant portions. Six sources of images will be addressed here:

an unpublished image created by the individual wishing to use it

an image located in a printed text

an image made by a university staff photographer and on file at the school's public information office

an image from an archival collection

an unpublished image from the university library's slide and photograph collection

and an image from a World Wide Web (hereafter "Web") site.

An unpublished image created by the individual wishing to use it

Is the image in the public domain?

For works created after January 1, 1978, copyright attaches as soon as a work is "fixed in any tangible medium of expression," (102a) therefore, if the image was made after this time it is protected by law. It is tempting to assume that simply because an individual created the image, he or she is automatically the owner of the copyright, and therefore is free to use it at will. Though this may be the case, two questions need to be raised: the capacity in which the photographer was acting and the nature of the material photographed.

If the photographer was making the photograph as part of his or her obligation to an employer then the photograph would be considered a "work for hire" and the copyright ownership would rest with the employer unless there was a signed agreement specifically allowing the photographer to retain the copyright. In this case, the creator of the image would need to seek the employer's permission prior to use. It also is important to consider exactly what has been photographed. For instance, if the image is of a piece of art on display in a museum it may be that permission of the museum or that of the artist may be necessary prior to the displaying of the image, depending on which actually holds the copyright.

Is the proposed use fair use?

If the individual using this image is in fact the owner of the copyright, then issues of fair use do not come into consideration.

If the user does not hold the copyright, as in a work for hire, the use would be permissible if in fact it will be part of another work for hire (i.e., a web page) for the same employer. At this point internal university policies regarding the use of its photographs should be consulted.

If the museum of artist owns the copyright, then fair use issues should be considered. The law does permit the projection of an image (via slide, for instance) for instructional purposes in a classroom where face-to-face instruction is being conducted (section 110). Unfortunately, the law was written prior to the widespread use of computer networks and do not address the kind of multiple copying typical of networks. To date no court cases exist to shed any further light. Fair use has always been a somewhat murky area and new questions raised by the Web environment have only heightened difficulties. As this area is fraught with such uncertainty; the best course is one of caution. It is better for now to err on the side of permission seeking making an argument for fair use on a case by case basis.

Who holds the copyright?

As discussed above, in this case it most likely is the creator of the photograph who owns the rights to the image barring the exceptions noted.

What permission(s) needs to be secured and fees negotiated?

If the creator of the photo is in fact the owner, no permissions need to be secured.

If the university is the owner of the work, then internal university policies need to be consulted.

If the museum or artist owns the copyright then permission needs to be negotiated and of course the question here is exactly what rights. There is significant debate about what rights are actually invoked when an image is viewed in the Web environment. Section 106 of the copyright law grants five rights to copyright holders: to reproduce, to prepare derivative works, to distribute, to perform the work publicly; and to display the work publicly. There is generally consensus that viewing an image in the Web environment requires the right of reproduction. Unique to the Web environment is the fact that every time the document is viewed in this setting a new "copy" is made and the right is invoked once again, and this has serious implications for the negotiation of fees. In the paper based world a one time use might be negotiated for an image which might appear in a book of which multiple copies would be printed. In the Web environment, this one time use does not seem to be perceived as applying in the same way since theoretically a Web document might never go out of print in the way a limited run book might. There are also those who argue that the Web environment invokes other rights, such as those of display and performance. This question is still the subject of debate and has not seen the kind of consensus that has begun to form around the issue of reproduction.

How can proper use of the image be assured?

Though this may seem self evident, it is important that only those rights granted by the rights holder be used. The granting of permission to exercise any one of the five copyrights does not mean the granting of the remainder. It is important that the potential user clearly identify and negotiate permission for those particular rights relevant to the proposed use. Any stipulation on the exercise of these rights, typically the use of a credit line or the payment of a fee, must be respected.

sources of images

An image located in a printed text

Is the image in the public domain?

Works created after January 1, 1978, are protected from the moment they are "fixed in a tangible medium of expression" for the life of the creator plus fifty years. For works published with a copyright notice between 1964 and 1977 copyright extends for a total of 75 years. For works published with a copyright notice between 75 years ago and 1963, copyright extends for twenty-eight years with the option of renewal for another 47 years, without which the work passes into the public domain. Works published more than 75 years ago are in the public domain. (For additional questions about public domain, refer to Laura Gasaway's "When Works Pass Into the Public Domain.")

Is the proposed use fair use?

If a work is in the public domain, fair use issues do not apply. The use is permitted by virtue of the work being in the public domain.

Even if the work is not in the public domain, the law does not allow the rights of copyright holders to be exclusive; they are subject to various limitations, the most significant of which is fair use. Section 107 of the law stipulates that the use for "purposes such as criticism, comment news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement." To determine whether a use is fair four factors must, by law, be taken into consideration and must be done on a case by case basis. The four factors are: 1) the purpose and character of the use, 2) the nature of the work , 3) the amount and subsantiality of the used portion in relation to the whole work and 4) the effect of the use on the market for the copyrighted work. To further guide fair use the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions" have been developed. Unfortunately, these guidelines were developed prior to the widespread use of computer networks and do not address the kind of multiple copying typical of networks. To date no court cases exist to shed any further light. Fair use has always been a somewhat murky area and new questions raised by the Web environment have only heightened difficulties. As this area is fraught with such uncertainty; the best course is one of caution. It is better for now to err on the side of permission seeking making an argument for fair use on a case by case basis.

Who holds the copyright?

It may seem self evident that the owner of the copyright is the individual whose name appears in the copyright statement under the image or in the copyright statement at the beginning of the text. Sometimes this is true, but sometimes not. It is a very good place to start and sometimes will provide good direction as in this sample statement taken from a book by North Wood Press. After providing an address the statement reads, "The copyright on all photographs in this book belongs to the photographer, and no reproductions of the photographic images contained herein may be made without the express permission of the photographer." The fact that copyrights are transferable means that the information printed with the image or in the text might in fact be dated and invalid. The best source on the identity of the holder of the copyright of a given work is the copyright registrations maintained by the Copyright Office. Circular 22 "How to Investigate the Copyright Status of a Work" and Circular 23 "The Copyright Office Card Catalog and Online Files" both published by the Copyright Office can provide some assistance. The Copyright Clearance Center may also be helpful.

What permission(s) needs to be secured and fees negotiated?

There is significant debate about what rights are actually invoked when an image is viewed in the Web environment. Section 106 of the copyright law grants five rights to copyright holders: to reproduce, to prepare derivative works, to distribute, to perform the work publicly; and to display the work publicly. There is generally consensus that viewing an image in the Web environment requires the right of reproduction. Unique to the Web environment is the fact that every time the document is viewed in this setting a new "copy" is made and the right is invoked once again. This has serious implications for the negotiation of fees. In the paper based world a onetime use might be negotiated for an image which might appear in a book of which multiple copies would be printed. In the Web environment, this one time use does not seem to be perceived as applying in the same way since theoretically a Web document might never go out of print in the way a limited run book might. There are also those who argue that the Web environment invokes other rights, such as those of display and performance. This question is still the subject of debate and has not seen the kind of consensus that has begun to form around the issue of reproduction.

How can proper use of the image be assured?

Though this may seem self evident, it is important that only those rights granted by the rights holder can be used. The granting of permission to exercise one of the five copyrights does not mean the granting of the remainder. It is important that the potential user clearly identify and negotiate permission for those particular rights relevant to the proposed use. Any stipulation on the exercise of these rights, typically the use of a credit line or the payment of a fee, must be respected.

sources of images

An unpublished image made by a university staff photographer on file at a university's public information office

Is the image in the public domain?

This image would not be considered to be in the public domain. Assuming that the staff photographer created the image in the course of his or her employment with the university, this photograph would have to be considered a work for hire. Section 201(b) of the Copyright Law stipulates that "in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author . . . [and] unless the parties have expressly agreed otherwise in a written instrument signed by them, owns the rights comprised in the copyright."

Is the proposed use fair use?

If in fact this will become part of another work for hire (i.e., a Web page) for the same employer, fair use issues do not apply. The best guides at this point are internal university policies regarding the use of its photographs.

Who holds the copyright?

As discussed above, employers hold all the copyrights of works made for hire unless there is a written agreement stating otherwise.

What permission(s) needs to be secured and fees negotiated?

As the university is simply making further use of property it already owns, no permissions or fees are applicable unless set up by internal university policy.

How can proper use of the image be assured?

Again, the proper guide here is the internal policies of the university.

sources of images

An image from an archival collection

Is the image in the public domain?

Yes, if the image was published more than 75 years ago. However, given that much of the material housed in an archive is likely to be unpublished, the 1976 provisions guiding unpublished works are more likely to be relevant. Photographs that were not yet published by January 1, 1978, when the revised copyright law took effect, "will pass into the public domain on December 31, 2002. There is an exception for previously unpublished works that are published between January 1, 1978, and December 31, 2002. They will pass into the public domain in 2027" (Gasaway 89).

Is the proposed use fair use?

To determine whether a use is fair four factors must, by law, be taken into consideration and must be done on a case by case basis. The four factors are: 1) the purpose and character of the use, 2) the nature of the work, 3) the amount and substantiality of the used portion in relation to the whole work, and 4) the effect of the use on the market for the copyrighted work. To further guide fair use the "Agreement on Guidelines for Classroom Copying in Not-For Profit Educational Institutions" have been developed. Unfortunately, these guidelines were developed prior to the widespread use of computer networks and do not address the kind of multiple copying typical of networks. To date, no court cases exist to shed any further light. Fair use has always been a somewhat unclear area and new questions raised by the Web environment have only heightened difficulties. As this area is fraught with such uncertainty; the best course is one of caution. It is better for now to err on the side of permission seeking making an argument for fair use on a case by case basis.

Who holds the copyright?

Simply because the archive holds the physical photograph in the collection, they do not necessarily own the copyright unless it was specifically granted to them or unless the work was done as a work for hire (Gasaway 88). However, as custodians or holders of materials, archives generally require that their permission be granted (and a fee paid) prior to use, and this is of course is in addition to the permission required by the copyright holder. Archives typically will assist a potential user in identifying and contacting a copyright holder, but they will also make clear that this responsibility lies with the potential user.

What permission(s) needs to be secured and fees negotiated?

There is significant debate about what rights are actually invoked when an image is viewed in the Web environment. Section 106 of the copyright law grants five rights to copyright holders: to reproduce, to prepare derivative works, to distribute, to perform the work publicly; and to display the work publicly. There is generally consensus that viewing an image in the Web environment requires the right of reproduction. Unique to the Web environment is the fact that every time the document is viewed in this setting a new "copy" is made and the right is invoked once again. This has serious implications for the negotiation of fees. In the paper based world a onetime use might be negotiated for an image which might appear in a book of which multiple copies would be printed. However, in the Web environment, this one time use does not seem to be perceived as applying in the same way since theoretically a Web document might never go out of print in the way a limited run book might. There are also those who argue that the Web environment invokes other rights, such as those of display and performance. This question is still the subject of debate and has not seen the kind of consensus that has begun to form around the issue of reproduction.

How can proper use of the image be assured?

Though this may seem self evident, it is important that only those rights granted by the right holder be used. The granting of permission to exercise one of the five copyrights does not mean the granting of the remainder. It is important that the potential user clearly identify and negotiate permission for those particular rights relevant to the proposed use. Any stipulation on the exercise of these rights, typically the use of a credit line or the payment of a fee, must be respected.

sources of images

An image from the university library's slide and photograph collection

Is the image in the public domain?

The best answer here is, probably not. Slides or photos held in this kind of collection are often acquired from vendors who have paid royalties to the copyright holder of the image. Sometimes, however, members of a university community will donate slides or photos of their own making and in these cases copyright issues need to be examined in light of the content of the image. If, for instance the image represented is that of a work by a living artist on display in a museum the rights may be held by the artist or possibly by the museum. Often libraries will make slide reproductions of images in texts in their collections and add these slides to the collection.

Is the proposed use fair use?

Applying fair use in this situation is particularly problematic. Universities generally maintain these kinds of collections in order to support teaching, and most frequently items are used with other classroom instructional activities. However, given the origin of some of the slides typically housed in these collections (see above) the status of even this use is somewhat hazy, though the practice is not uncommon. The law specifically states in section 108 (the section which permits libraries special copying privileges) that, "the rights of reproduction and distribution under this section do not apply to a . . . pictorial, graphic or sculptural work"(108h). This means that the kind of reproduction which produced the slide now being considered for further duplication must gain its legitimacy from the fair use provisions (107) and from section 110 which allows the "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom . . . ." This language apparently provides "the right to produce slides and transparencies [for classroom instruction] but there is no specific language in the legislative history to define these situations"(Gasaway 89). Further complicating this situation is disagreement among publishers on whether permission should be sought prior to duplicating such a work in slide or transparency format (Gasaway 90). When the additional complexity of the Web environment is added to this fair use puzzle, it makes it very difficult indeed to recommend relying on this argument to support usage. As this area is fraught with such uncertainty; the best course is one of caution. It is better for now to err on the side of permission seeking making an argument for fair use on a case by case basis.

Who holds the copyright?

"Tracking down the copyright holder for photographs is particularly difficult" (Gasaway 90). The likelihood of locating the copyright holder of an image found in a slide and photo collection depends largely on the accuracy of that collection's records. In the case of a slide purchased from a vendor, the library might need to contact the vendor for this information and it may or may not be accurately forthcoming. In the case of a slide made from an illustration in a text, the publisher must be contacted in order to seek out the identity of the copyright holder of the image and then contact must be made with the owner. All of this can require extensive time and effort and may or may not produce a satisfactory result.

What permission(s) needs to be secured and fees negotiated?

There is significant debate about what rights are actually invoked when an image is viewed in the Web environment. Section 106 of the copyright law grants five rights to copyright holders: to reproduce, to prepare derivative works, to distribute, to perform the work publicly; and to display the work publicly. There is generally consensus that viewing an image in the Web environment requires the right of reproduction. Unique to the Web environment is the fact that every time the document is viewed in this setting a new "copy" is made and the right is invoked once again. This has serious implications for the negotiation of fees. In the paper based world a onetime use might be negotiated for an image which might appear in a book of which multiple copies would be printed. In the Web environment, this one time use does not seem to be perceived as applying in the same way since theoretically a Web document might never go out of print in the way a limited run book might. There are also those who argue that the Web environment invokes other rights, such as those of display and performance. This question is still the subject of debate and has not seen the kind of consensus that has begun to form around the issue of reproduction.

How can proper use of the image be assured?

Though this may seem self evident, it is important that only those rights granted by the right holder be used. The granting of permission to exercise one of the five copyrights does not mean the granting of the remainder. It is important that the potential user clearly identify and negotiate permission for those particular rights relevant to the proposed use. Any stipulation on the exercise of these rights, typically the use of a credit line or the payment of a fee, must be respected.

sources of images

An image from a Web site

Is the image in the public domain?

The answer to this question depends very much on the individual providing the answer. Some argue that by posting an image on the Web, "the owner of the material is giving away copies. If the owner does not want to give away copies, he [sic] should not put the works up to be browsed" (Graham). Others suggest that use of the Web environment is not public domain but that the unique nature of the Web creates an implied license making further distribution (i.e., copying) of any given document permissible, even desirable (Hayden). Given the diverenge of views on this issue, the most respectful, ethical course seems to be to work from the assumption that an author does not consider his or her work to be free for the taking and to follow the process below accordingly.

Is the proposed use fair use?

To determine whether a use is fair four factors must, by law, be taken into consideration and must be done on a case by case basis. The four factors are: 1) the purpose and character of the use, 2) the nature of the work, 3) the amount and substantiality of the used portion in relation to the whole work, and 4) the effect of the use on the market for the copyrighted work. To further guide fair use the "Agreement on Guidelines for Classroom Copying in Not-For Profit Educational Institutions" have been developed. Unfortunately, these guidelines were developed prior to the widespread use of computer networks and do not address the kind of multiple copying typical of networks. To date no court cases exist to shed any further light. Fair use has always been a somewhat murky area and new questions raised by the Web environment have only heightened difficulties. As this area is fraught with such uncertainty; the best course is one of caution. It is better for now to err on the side of permission seeking making an argument for fair use on a case by case basis.

Who holds the copyright?

Some images on the Web contain a copyright notation which clearly identifies the copyright holder, though many more do not. When the rights holder is identified an email address for that individual is often also provided and so efforts to make the appropriate contacts are facilitated. For images not carrying an explicit notice, the ethical, considerate practice is to make a serious effort to reach the creator or maintainer of the Web site and with this individual's assistance try to then identify and contact the rights holder. Given the range of opinions on the appropriateness of copying material from the Web, and the ease with which rights can be violated in this environment, it is best to err on the side of protecting the rights of individuals brave enough to make their materials so widely and freely accessible.

What permission(s) needs to be secured and fees negotiated?

There is significant debate about what rights are actually invoked when an image is viewed in the Web environment. Section 106 of the copyright law grants five rights to copyright holders: to reproduce, to prepare derivative works, to distribute, to perform the work publicly; and to display the work publicly. There is generally consensus that viewing an image in the Web environment requires the right of reproduction. Unique to the Web environment is the fact that every time the document is viewed in this setting a new "copy" is made and the right is invoked once again. This has serious implications for the negotiation of fees. In the paper based world a onetime use might be negotiated for an image which might appear in a book of which multiple copies would be printed. In the Web environment, this one time use does not seem to be perceived as applying in the same way since theoretically a Web document might never go out of print in the way a limited run book might. There are also those who argue that the Web environment invokes other rights, such as those of display and performance. This question is still the subject of debate and has not seen the kind of consensus that has begun to form around the issue of reproduction.

How can proper use of the image be assured?

Though this may seem self evident, it is important that only those rights granted by the rights holder be used. The granting of permission to exercise one of the five copyrights does not mean the granting of the remainder. It is important that the potential user clearly identify and negotiate permission for those particular rights relevant to the proposed use. Any stipulation on the exercise of these rights, for example the use of a credit line, the payment of a fee, or the request that a copyright notice be retained with the image, must not be disregarded.

sources of images

Bibliography

a.cni.org via Telnet. The archives of the list serve on copyright sponsored by the Coalition for Networked Information is a rich source on the new copyright issues raised in the digital environment. It is a useful tool for discovering the wide divergence of views and interpretations currently held as individuals struggle to apply the law to circumstances not imagined when the law was written.

Barlow, John Perry. "The Economy of Ideas." WIRED On Line. http://www.nlc bnc.ca/documents/infopol/copyright/jpbarlow.htm. 1993.

Crews, Kenneth D. Copyright, Fair Use and the Challenge for Universities: Promoting the Progress of Higher Education. Chicago: University of Chicago Press, 1993.

Gasaway, Laura N., Sarah K. Wiant. Libraries and Copyright: A Guide to Copyright Law in the 1990s. Washington DC: Special Libraries Association, 1994.

---. "When Works Pass into the Public Domain." http://arl.cni.org/scomm/copyright/pubdomain.html.

Graham, S. Keith. vapspcx@cad.gatech.edu. January 20, 1995. From the archives of the Copyright list serve of the Coalition for Networked Information available via Telnet to a.cni.org.

Gorman, Robert A. Copyright Law. Washington, DC: Federal Judicial Center, 1991.

Hayden, Bruce E. bhayden@copatlaw.com. August 21, 1995. From the archives of the Copyright list serve of the Coalition for Networked Information available via Telnet to a.cni.org.

Patterson, L. Ray and Stanley W. Lindberg. The Nature of Copyright: A Law of Users' Rights. Athens: University of Georgia Press, 1991.

Nathan, Peter E.Report of the Association of American Universities Task Force on Intellectual Property Rights in an Electronic Environment. 1994. http://arl.cni.org.aau/1PTOC.html.

United States. Congress. Copyright Law of the United States of America. Title 17 of the United States Code, Circular 92. Washington DC: The Library of Congress, 1994.

---. Copyright Office. Library of Congress. Reproduction of Copyrighted Works by Educatrs and Librarians. Circular 21. Washington DC: The Library of Congress, 1994.

---.Copyright Office. Library of Congress. How to Investigate the Copyright Status of a Work. Circular 22. Washington DC: The Library of Congress, 1991.

---. Copyright Office. Library of Congress. The Copyright Office Card Catalog and Online Files. Circular 23. Washington DC: The Library of Congres, 1993.