Intellectual Property and the Arts
Images and the Public Domain
This month the CAA Committee on Intellectual Property (CIP) launches a new feature in CAA News. Each issue for the next year will contain a hypothetical question on some aspect of rights, permissions, fair use, and other intellectual-property topics of interest to our members. We will provide a short answer, with added commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific legal questions, contact an intellectual-property attorney.
Q: I want to publish images of three works of art in a book I am writing. The book is to be published by a nonprofit press. The images (a painting, a photograph, and a drawing) are in the collections, respectively, of a U.S. museum, a photo archive, and a library. The copyright on these works of art has expired; they are in the public domain, which means, I think, that they can be legally copied. Can I reproduce photographs of these works in my book without asking the institutions’ permission? Would it make a difference if I were publishing at a for-profit press? And does it matter if I myself took the photos of the images or got them from the institutions?
A: If the images are truly in the public domain, you do not need permission under U.S. copyright law to publish your own photographs of the works. (If the images were not created in the U.S., and/or your publisher is not in the U.S., non-U.S. copyright laws might apply, however.)
But even if you took the photos yourself, or obtained them from a source other than the institutions, you may not have permission to publish them. For example, if the institution prohibited or conditioned the taking of photographs, your having done so and then publishing the photographs may breach a contract.
If the museum, archive, or library provided you with its photograph of the object, that photograph may be protected by copyright—even if the image itself is in the public domain. (In one legal case, in New York, a court held that no copyright can be asserted in a photograph that was a faithful reproduction of a work in the public domain. Some publishers choose to rely on that decision in determining if a photograph may be published; others do not.)
If the photograph of the image is protected by copyright, the institution that provided you with the photograph is entitled to control its reproduction and use. Therefore, the institution may legally charge you fees for 1) reproduction; and 2) creation and rental or loan of a photograph.
In short, you will need to make sure that you have all the rights from the institution to publish the photograph in all relevant formats (e.g., print and electronic).
CIP Commentary
Fees for use of a photograph are set by individual copyright holders and may vary considerably. Professional photographs are costly to produce and lend. Institutions may choose to set a sliding scale of fees, depending on use. Fees are often waived or reduced when the image is to appear in a noncommercial or scholarly publication, or one from a small press.Other considerations that may affect the fee include size of the reproduction, size of the print run of the book or journal, whether the book or journal will be distributed in a limited territory (e.g., North America only) or worldwide, and whether the reproduction will be in color or black and white. When asking for rights to publish the photograph, therefore, you should provide detailed information about the proposed use of the image. Will it be used for a commercial product, such as a poster or tote bag? How many copies will be produced? What are the means of distribution—book, journal article, Internet, intranet, television? Will the publication be available electronically?
In addition, public institutions such as museums frequently have a legal obligation to maintain high quality of reproductions. Many will not permit cropping, overprinting of type, or other invasion of the image integrity. Some will require that they be given and have the right to approve color proofs. Such restrictions may even have been imposed by the donor of the artwork. Reproduction fees cover part of the cost of providing this service.
You asked about images from a museum, photo archive, and library. Each institution sets its own permissions policy, as do individuals who hold copyrights. There is no standard policy for a particular type of institution or rights holder.
If your book will be published or distributed outside the United States, and/or if the images you seek to reproduce are from non-U.S. sources, non-U.S. copyright laws may apply. You should therefore always consult your publisher to determine what rights and permissions you must seek.
For further information about museum rights-and-reproduction policies, see the Visual Resources Association Guide to Rights and Reproduction at American Art Museums at www.vraweb.org/specialbull.html.
Rules of Thumb
- If the copyright on a work has expired, it is in the public domain. For rules about determining the date of expiration of copyright, see the chart here.
- Works in the public domain may be reproduced without permission or fee for both scholarly and commercial purposes.
- Note that the photograph or scan of a public-domain work often is protected by copyright and, in such case, permission to publish the photograph or digital file must be obtained.
- Publishing in either a for-profit or nonprofit context implicates copyright and may require permissions, although some institutions may choose to give nonprofit, scholarly publications a discount or waiver of fees.
Originally published in CAA News 28, no. 5 (September 2003): 6–7.
