What follows is not legal advice. Instead, this is a brief summary of our understanding of the laws that govern image use in the academic sphere based on consultations with a range of lawyers with expertise in this area. These experts have agreed that Smarthistory’s use of images is consistent with U.S. law and legal precedent.
A little history
Benjamin Franklin explicitly recognized the debt any creative invention owed to the broader society that had made that invention possible, he wrote,[T]he contributions of intellectual property to the public good are not to be considered a favor to the public but as the recognition of an obligation previously incurred, or the payment of a just debt. (Lewis Hyde, Common as Air: Revolution, Art, and Ownership (New York: Farrar, Straus and Giroux, 2010), p. 134.
What is copyright?
Most basically, copyright lasts for a limited time, and then works enter the public domain, where they are free for use by all. (CAA)
Under the U.S. Constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public, the benefits derived from the author’s labors. (Lewis Hyde, p. 54).
What is the Public Domain?
The “public domain” contains works that are no longer copyright protected. Works in the public domain may be used freely without the permission of the former copyright owner.
Under current law, individual work enters the public domain 96 years after creation (until the year 2073). At that point, the United States will return to the earlier rule that copyright extends 70 years after the death of the creator.
This means that all creative work that was initially published or released before January 1, 1925 has entered the public domain and has no copyright protection as of January 1, 2020.
Using copyrighted works in teaching, learning, and scholarship
The use of copyrighted works requires permission from the copyright holder except in the case of fair use or if the work has a license that allows use (such as a Creative Commons license).
Note: many publishers require explicit permission from museums or commercial agents (ARS and VAGA) even though these permissions may not be legally required.
Not everything with a copyright notice is copyrighted: overreach and Bridgeman
Photographs of works of art (those that are faithful reproductions of two-dimensional works) in the public domain are generally free to use.
Thanks to the decision in the Bridgeman case (widely accepted though not law), a photograph that is a faithful reproduction of a two-dimensional work in the public domain cannot be copyrighted (though copyright is often asserted by museums and other institutions). This is called copyright overreach. In other words, copyright requires novel invention, which is not the case with a faithful reproduction.
According to the reasoning of the decision in Bridgeman Art Library v. Corel Corp… copyright-free material… includes faithful photographic reproductions of two-dimensional artworks, which are distinct from the artworks they depict. Bridgeman, however, does not on its face apply to still photographs of three-dimensional works, such as sculpture, architecture, and performance art. Nevertheless, such photographs might be used pursuant to fair use in light of the principles and limitations set forth in the Code. (CAA)
The chilling effect
When institutions attach copyright notices to public domain works, the legal language, even if unenforceable in court, chills the public’s use of these scans for far-ranging educational, artistic, and commercial purposes. (Pittman)
Fair use of copyrighted material
The right to make fair use of copyrighted materials is a key tool for the visual arts community, although its members may not always choose to take advantage of it. They may still seek copyright permissions, for instance, to maintain relationships, to reward someone deemed deserving, or to obtain access to material needed for their purposes. But, in certain other cases they may choose instead to employ fair use of copyrighted material in order to accomplish their professional goals. (CAA)
Copyright protects artworks of all kinds, audiovisual materials, photographs, and texts (among other things) against unauthorized use by others, but it is subject to a number of exceptions designed to assure space for future creativity. Of these, fair use is the most important and the most flexible. (CAA)
Teachers in the visual arts may invoke fair use in using copyrighted works of various kinds to support formal instruction in a range of settings, as well as for uses that extend such teaching and for reference collections that support it, subject to certain limitations. (CAA)
See the CAA guidelines here for specific examples of those limitations (teaching and writing).
Creative Commons licenses for copyrighted material
Creative Commons licenses…provide advance permission for a range of uses. Anyone may use such works in ways authorized by the applicable license but may also invoke fair use for other kinds of uses, where appropriate. (CAA)
Different licenses and what they allow and restrict can be found here.
Strategies for finding images
Don’t be satisfied! Spend time to look for the highest resolution, most accurate image.
Know your rights instead of relying on the claims of institutions and individual photographers.
Where to find images
A good place to start is Google Images, but keep in mind that images from many image libraries, museums, archives, and other quality resources will not show up here. In other words, spending 10-15 minutes on a Google image search may not turn up academic sources, and this is especially true for images that are more rare. Also, even if your image turns up in a Google search, there could well be a better reproduction from a library, museum or archive.
Tip: Right-clicking on any image in the Chrome browser and selecting “Search Google for image” will automatically result in an image-based search in Google Images. You can also use the “tools” function to help sort by size and find larger images and search for works that are licensed for reuse.
A word about Pinterest…
Many Google Image search results will lead you to images on Pinterest. These are very rarely linked to accurate metadata (the important caption and attribution information about an image), and so it is impossible to find out where the image is from or what rights it has been assigned. You should avoid using images directly from Pinterest, but you can sometimes use Pinterest to help you determine whether an image exists. Find the images you want to use on reliable, data-rich websites instead.
Our favorite resources
- Smarthistory Flickr group
- Flickr advanced search (search for CC licensed photos)
- Google advanced image search
- Google Arts & Culture (does not allow download but you can screenshot or most can be found on Wikimedia)
- Bibliothèque nationale de France (Gallica)
- Library of Congress
- Digital Public Library of America (DPLA)
- Manar Al Athar (University of Oxford)
- World Digital Library
- Wellcome Collection
- David Rumsey Historical Map Collection
- The John Carter Brown Library
Many museums now offer high resolution images of works in the public domain for free download: The Walters Art Museum, Cleveland Museum of Art, The Metropolitan Museum of Art, J. Paul Getty Museum, National Gallery of Art, British Museum, and others offer high resolution images (though many still offer nothing or small, low-resolution images)
- Use Google image search only as a starting point
- Use a Google reverse image search if you find a low-resolution image and want to find other versions of the image (upload an image here)
- Use Google Books to find additional metadata to enable more specific and different searches
- Search repeatedly, using multiple search terms from the most general to the most specific, including in the language associated with the work
- Search specialized and local (national, state, and county) archives
- Use a screenshot if the work is in the public domain but the image isn’t available for download
References and resources
- Center for the Study of the Public Domain
- College Art Association The Code of Best Practices in Fair Use in the Visual Arts
- Stanford Copyright and Fair Use Center
- AAMD Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museum
- Kenneth D. Crews, “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching,” Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, (July 1, 2012)
- Linnea Dale Pittman, “Combatting Copyright Overreach : Keeping 3D Representations of Cultural Heritage in the Public Domain,” New York University Law Review (October 2020)
- Creative Commons search
- Lewis Hyde, Common as Air: Revolution, Art, and Ownership (New York: Farrar, Straus and Giroux, 2010)
Can I use my own photograph of a work in the public domain?
Can I use my own photograph of a work in copyright?
Yes, if it complies with Fair Use or is accompanied by a CC license—see the specific license requirements and the CAA guidelines for Fair Use.
Can I use a screenshot of a 2-D work in the public domain even if the museum
or photographer on Flickr, or any other commercial or non-commercial organization) doesn’t allow downloading and includes a copyright notice on the image?
I know that, for works in the public domain, the Bridgman decision says that the photographer can not claim copyright protection on faithful photographic reproductions of 2D works of art, but what if I need to use an image of sculpture or architecture?
Even if the sculpture or architecture is in the public domain, there may still be a layer of copyright protection on the photograph itself. This is where licensing is useful. Search for Creative-Commons licensed images on Flickr or elsewhere. You can also use the image if your usage meets the Fair Use tests.
Can I use an image that is being sold by a commercial agency such as Getty Images?
Yes if it is a 2d object in the public domain; nevertheless you will need use the metadata to find another digital image of this work since the commercially available copy will be watermarked and low resolution.
What does non-commercial mean?
A good answer can be found here.
How do I cite image sources?
Here is how we do it at Smarthistory:
For a work in the public domain:
Plate with a king hunting rams, Sasanian Iran, 5th–6th century C.E., silver with mercury gilding and niello inlay; 21.9 cm diameter (The Metropolitan Museum of Art)
For a CC-licensed work:
Augustus of Primaporta, 1st century C.E., marble, 2.03 meters high (Vatican Museums) (photo: Steven Zucker, CC BY-NC-SA 2.0)
For a work in copyright:
Kiki Smith, Lying with the Wolf, 2001, ink and pencil on paper 88 x 73″ (Centre Pompidou, Paris) © Kiki Smith