Our Permissions Controller for the digitisation of the Royal Commission on Historical Monuments of England, Rachael Lazenby, has written an introductory guide to copyright for images, drawing on her experience on this project and on other work that she has done. Part one of Rachael’s guide appeared here; the rest of the guide is below.
Copyright and images – an introductory guide, part 2
Identifying copyright holders, orphan works and due diligence
Frequently publishers will include images which have appeared in other publications. The modern convention is to include a caption with the image which makes it very clear who the copyright holder is and who should be approached for permission to reproduce an image. However, the older the publication, the more likely it is that such information will not be found in a caption. The RCHME volumes, the earliest of which date from 1913, contained copyright holder information in a variety of places. This included the illustration lists, footnotes, and the preliminary materials of the texts as well as in illustration captions. When considering using images from older works it is advisable to check in all these places for information on the copyright holder if the original publisher no longer exists or does not retain rights information on older publications. Internet searches, local history societies and local museums may also be able to help in establishing the copyright status of historical images.
Inevitably there were some images included in the original RCHME volumes whose owners could not be traced. Such images are known as orphan works. Different organisations take different stances on how to approach such images and every organisation will have advice on what constitutes due diligence in attempting to establish a copyright holder.(1) A record should be kept of all efforts made in trying to trace the current rights holder.
Crown Copyright applies to images produced by certain UK government bodies and lasts for 50 years. The National Archives has a very informative section on this topic, including a list of bodies whose images now fall under Crown Copyright. Many images which are protected by Crown Copyright can be used if a link appears with the image directing the reader to a ‘click-to-use’ licence.
Fair use and Enforcement
So far I’ve tried to avoid distinguishing between reproducing images for a limited circulation (such as a dissertation) and a wide circulation (such as a paper published in a journal). Theoretically copyright law covers any reproduction of a work regardless of the circulation or the commercial value of the work. Of course in practical terms the greater the commercial value of an image the higher the likelihood that the copyright holder may take legal action to prevent or punish any unauthorised use of their image.
Fair use is a concept which enables students and researchers to provide examples and quotations of other people’s works in essays and papers without first obtaining permission from the originator. Generally speaking quotations tend to pose fewer problems than images and providing they appear in the body of a text and for educational, critical or journalistic purposes, they can be used without express permission. Most educational institutions and publishers have a legal team who will be able to advise on any concerns you may have about reproducing images. In addition universities will often provide guidance on matters of copyright in student handbooks.
It is important to note that while fair use can be used as a legal defence, copyright is a complex issue, and copyright holders have the right to protect their work from any unauthorised use.(2) Following the principles of fair use will not necessarily prevent a case from going to court. The internet has made it easier to reproduce images without the consent of the copyright holder and the laws covering copyright are constantly evolving in response to new cases.(3) Although the copyright of images of buildings belongs to the photographer or artist, an interesting case went through the French courts a couple of years ago concerning the Eiffel Tower. Photos of the tower at night were deemed to be protected by copyright law as the lighting display constitutes a work of art.(4)
I hope this post has shed some light on the issues surrounding copyright of images. A few key points to take away with you are:
Copyright arises in a work, it does not have to be registered.
Publicly accessible content is not necessarily in the public domain.
Record your efforts to trace copyright holders if you intend on reproducing orphan works.
Stay within the guidelines of ‘fair use’ but bear in mind it will not always prevent legal action.
Check with your institution’s legal department if you have any doubts about content you intend to use.