How to find images: copyright, fair use, and public domain

Dr. Beth Harris: [0:00] Before I dive in, I should say I’m Beth Harris, I’m the executive director of Smarthistory. What follows is not legal advice. None of us are lawyers at Smarthistory, but over the years, we’ve learned a lot. I’m looking forward to sharing what we’ve learned with you.

[0:19] What I did in arranging this talk was to try to think about how I wish someone had explained these things to me when I was starting out with Smarthistory. I hope I lay things out really clearly for you.

[0:39] This is just a reminder of the conversations that are coming up that you can register for.

[0:44] Most obviously, when we think about images that we can use, we have two categories. We have copyright and we have things in the public domain, and works move from being copyrighted into the public domain. Currently, that takes 96 years after the creation of the work of art. It used to be a shorter time. The idea was not so much when the founders wrote the copyright law wasn’t so much to protect the rights of the copyright holder. It was actually to make sure that works, creations, entered the public domain, where they could be used freely.

[1:29] The idea was that if we had this pool of things in the public domain that we could all draw from, that we could be more creative, we could have a brighter future, and so the public domain is super important, that it exists.

[1:48] Every year new things enter the public domain, and there are a bunch of websites that chronicle what enters the public domain every year, including this from Duke Law School. They have a Center for the Study of the Public Domain.

[2:05] The public domain — copyright exists to make sure that we can all, in a way, inherit the great wealth of knowledge and inventions and creativities of everyone who came before us to create new things.

[2:23] Copyright is a pretty straightforward concept, but there is one area in which it affects those of us studying images in a very direct way, and so I want to actually start by talking about something called copyright overreach.

[2:44] Basically, someone can take something that’s in the public domain, a work of art in the public domain, and slap a license on it, slap a copyright notice on it. In that way, the work is in public domain, but it gets re-copyrighted. This is called copyright overreach. The issue is that works of art have two layers of copyright. That’s the easiest way to think about it.

[3:16] They have the underlying work of art, which could be in the public domain, older than 96 years, but then what happens is that the photographer of that work of art can add a layer of copyright. So we have these two layers.

[3:34] For a long time, it was very difficult for art historians to use images, because everyone who took a photograph of a work of art put a copyright notice on it, said, “This is my photograph, and you can’t use it,” including museums.

[3:52] Luckily, there was a decision that really helps us a lot, and that’s really key to know about, and this is the Bridgeman decision. I’ve got it down here at the bottom of this slide. Now, Bridgeman really helps us because Bridgeman, basically that decision said that works of art that are in the public domain, if you take a photograph of them, that is, a straightforward photograph, and it has to be — Bridgeman only applies to works of art that are flat, that are two-dimensional. Drawings, paintings, prints, and things like that.

[4:30] If someone takes a photograph of that flat two-dimensional work of art, and it’s a straightforward documentary photograph, they can’t actually copyright that. They can’t copyright it because it’s a document and there’s no creativity involved. This was the Bridgeman decision.

[4:52] That doesn’t apply, though, to sculpture. If someone takes a photograph of a sculpture, they can copyright that sculpture, and Bridgeman…that photograph of the sculpture, and Bridgeman wouldn’t apply.

[5:04] Let me walk you through some examples of that because this is really key. Understanding copyright overreach is really key. Here’s a screenshot of David’s “Oath of the Horatii” in the Louvre, and you can see on the lower left that there’s a really prominent copyright notice that would immediately make me worried about using this image and getting in trouble in some way. Even though the David, from the late 18th century, is obviously a painting that’s in the public domain. Can I use this? Can I download this image from the Louvre or do a screenshot and use it?

[5:44] The trick is, first of all, to know that you could use it under Bridgeman, but also to always read the fine print. In this case, if you click conditions for use of images, and this is very tricky, the fine print says actually non-commercial use is okay. And so this is fine for teaching and learning and scholarship. However, this would also be covered by Bridgeman.

[6:16] So it’s important to read the fine print because more and more museums and cultural institutions are putting up notices that distinguish between commercial and non-commercial use. So that if you want to use an image commercially, you have to pay the museum for it, which is fair.

[6:33] If you want to use it for non-commercial purposes, you can without asking permission and without paying a fee. That’s more and more happening, but is not universally the case.

[6:46] Here’s another example. This one is from the Ashmolean Museum at Oxford. Here’s a Turner watercolor. Can you use this? Yes, under Bridgeman, it’s a flat work of art. You can use it. It’s in the public domain.

[7:00] But the trick is for many art historians that you may need to have a really good relationship with the Ashmolean, maybe you’re using an archive there. And so in order to protect that relationship, you may not.

[7:16] Legally speaking, you can under Bridgeman. I should make clear that I’m talking about US law here. Under Bridgeman, you can use this. Here’s an example from Flickr. It’s not just institutions like museums that do copyright overreach. Here’s someone on Flickr who has put up their photograph of David’s “Oath of the Horatii.”

[7:48] In this case, they put all rights reserved on it, license on it, and so this might be the best photograph you could find of the David on the web, but you feel like you can’t use it because it’s got this all rights reserved.

[8:02] Again, you can use it because of Bridgeman. Now, the thing with Flickr is that when you upload photos to Flickr, the default is that — this all rights reserved. A lot of people don’t know that they can go in and change the license and allow use.

[8:24] If you see this, it doesn’t necessarily mean someone is really declaring that this is their photograph and no one else can use it. It’s just how things get uploaded to Flickr in many cases.

[8:36] I just want to show you another use case here, which is another image that I found on Flickr, actually for a Smarthistory video I was making a few, couple of weeks ago. This was the most beautiful photograph I could find of this sculpture. Unfortunately, it says all rights reserved.

[8:57] Can I use this under Bridgeman? No, this is a copyrighted photograph. In order to use it — because it’s a sculpture, it’s 3D, I need to ask permission.

[9:11] I just used Flickr mail and I sent an email to Eddie and said, “Hey, Eddie, I want to use this beautiful photograph you have on Flickr. I’m going to use it for non-commercial purposes and I’m happy to credit you in any way that you want or put anything, any kind of restrictions on the use of the image that you want.” He wrote back and said, “Sure, I’m happy to.”

[9:32] I would say 98 percent of the time, or even more, 99 percent or 100 percent of time, people will let you use their images for non-commercial use if you just ask. We’ve had really good luck on Flickr. I would say 75 percent of the time I hear within a day or two.

[9:48] The moral of this part of the talk is to know your rights, because you’ll encounter images that have a copyright notice on them in lots of places. You’ll also — for example, if you do an advanced Google image search, you’ll see, and you say “just show me works that are available for reuse,” which you can do in a Google advanced image search.

[10:14] Things will come up, and not everything that’s actually usable will come up because people don’t post the allowable uses with their images.

[10:25] Everything is a little bit of a balancing act and figuring out what you can use. The other thing to be careful of is that if you go to publish a scholarly article, the publisher may say to you, “Hey, I know that the work of art you want to use is in the public domain and you took the photograph, so you own the copyright of that photograph,” if it’s a sculpture, for example.

[10:52] “But even so, we want you to get permission from the museum and therefore you may have to pay a reproduction fee.” So legally, you can use it, but publishers demand rights clearances that they don’t need to demand. Our advice is to push back and try to educate people about what we can and can’t use.

[11:15] The problem with all of this is that for art historians, when digital images happened, when the web happened, there were so many restrictions placed on images. If you clicked “what are the terms of use for me to use this image?” You would sometimes get three pages to scroll through of legal language. It was just terrifying to think, “well, if I don’t…if I use this and I’m not allowed, what will happen?”

[11:42] There was a real chilling effect in the discipline. And I think it’s one of the reasons that in a way art history comes late to the digital humanities. Because of all of these restrictions that are so nervous-making around images.

[11:57] Now, let’s talk about how to use something that really is in copyright. Not just copyright overuse, but really in copyright. There are three possibilities. One, obviously, is to get permission from the rights holder. That’s pretty straightforward.

[12:14] The next possibility is to check to see whether there’s a license. Most often, the kind of license people use is a Creative Commons license. If there’s a license, that means that the copyright holder has said, “You’re allowed to use this.” We’ll talk about that in specific ways. Number three is to rely on fair use.

[12:41] Let’s start with Creative Commons. A Creative Commons license basically says you can use this, but you can only use it in the following ways. I’ll show you an example from Smarthistory, but Creative Commons licenses aren’t just good for knowing what you can use that’s already out on the web.

[13:02] They’re also really good for you to apply to your own work that you put online that protects it, that makes sure that people attribute it and use it in the way that you want it to be used.

[13:11] Smarthistory uses a Creative Commons license, and you can see if you go to our Flickr group, it’s right down on the lower right; it says, “Some rights reserved.” It doesn’t mean that we’ve released this into the public domain for anyone to use however they want, but that we’ve restricted the rights. But it means that no one has to ask us, because the license is right there.

[13:33] Smarthistory’s license allows for use as long as you attribute. You say you got this from Smarthistory, you link back. We allow non-commercial use, not commercial use, and we ask that anyone who uses our images shares them in the same way with the same license. Those are important restrictions to pay attention to when you’re using a Creative Commons license.

[14:02] Now, people use different versions. Some people only require attribution. Some people allow commercial use. It really varies, but you can always click through and see what’s allowed with a Creative Commons license.

[14:17] What if there’s no license, or there are no guidelines about what you’re allowed to do? What do you do then? Well, you can rely on fair use. The best publication to consult for this is the Code of Best Practices in Fair Use that CAA put out a few years ago, because there are very specific use cases listed there and you can find your use case and read that over and make sure that you’re covered by fair use.

[14:47] In this case, too, you don’t have to ask the person who holds the copyright if you can use it, because your use is fair use. You should go consult those use cases and the guidelines and the CAA guidelines.

[15:02] Basically, there are two key issues. One is — this is really the big one, this is the big important one — is that you have to transform it in some way. You can’t just put it up and leave it there and not change it in some way. You have to transform it by adding learning content around it, by putting it in a video, by various ways of transforming it. It has to be a different kind of use.

[15:33] The other thing is to use it in proportion. For example, if I was going to use a piece of a video and I really only am talking about the first 30 seconds of a video, I shouldn’t post the whole video. Fair use is really a wonderful thing. We should take a lot more advantage of it.

[16:01] We really wanted to keep these to 30 minutes. I wanted to get to not just what can you use, but how to find images, how to find great high-resolution, beautiful images that you can use in teaching and in scholarship. I’ve listed some of our favorite sources here.

[16:19] In the handout that we’re going to make available, the Google doc, there are many, many more. It’s important to know that when you’re on Flickr or you’re on — doing a Google image search that you can do an advanced search and just search for images with a Creative Commons license.

[16:36] Another really handy trick is Google Arts and Culture, which has really beautiful high-resolution images, but they’re not downloadable from Google Arts and Culture. Wikimedia went through Google Arts and Culture and scraped those images and they’re on Wikimedia.

[16:55] If you actually just search artist and title and Google Arts and Culture, and then the word Wikimedia, you’ll find that high-resolution [image] on Wikimedia. You may know of some of these great sources already, but many more, as I said, are listed in the handout.

[17:10] Strategies. Use Google image search only as a starting point. So many archives and libraries are not…don’t show up in a Google image search. I use Google reverse image searches a lot. Sometimes I’ll find something low-resolution and I want to find other versions of it. I’ll do a Google image search or reverse image search.

[17:36] I use Google Books a lot to find additional metadata. Say I find something online and I’m like, “Wow, that would be perfect to illustrate this idea that I’m talking about.” But the only thing that I find is, it’s on Pinterest. It has no real caption information that I can rely on.

[17:55] But I can actually look [at] Google Books or do a reverse image search, find more caption information, find more metadata, and then enable more searches. So spending a lot of time searching in different ways, very much like just doing research. Check state and local archives. They’re a wealth of content.

[18:20] Those are my basic strategies and sources. I think the main moral is not to be satisfied. Find an image, but spend an hour looking for another one.

[18:36] I will tell you that 90 percent of the time, if I spend an hour or two looking, and I know that sounds like a lot, but it really yields a much more beautiful image with more reliable caption information often. It’s just really worth the time to do that.

[18:54] I just want to end by reminding everybody that we have these upcoming workshops. We can continue the conversation in Facebook, and I’m happy to answer any questions. Did I go too long? Do we have time? We do. Nine minutes left for questions. That’s great.

Dr. Lauren Kilroy-Ewbank: [19:18] I’m popping on now that we’re here to help the Q&A. I’m Lauren Kilroy-Ewbank. I’m the new Dean of Content and Strategy here at Smarthistory. Just to encourage people, if you do have questions right now, just to pop them the Q&A, and it looks like we have some.

[19:34] Beth, if you wanted to…I think the first question we got is what about images on Artstor.

Dr. Harris: [19:44] Yeah. Artstor…thank God for Artstor in the beginning. Artstor made all these images available to us when there weren’t high-quality digital images out there yet. They charged money for them, but our institutions paid for them and we had access to them. Of course, Artstor does download…

[20:06] You are allowed to download from Artstor, and they will tell you what you can do and not do. But basically, it’s the same thing. If a work of art is in the public domain, it’s flat, and the photograph that you’re using of it, the image that you’re using of it, is documentary, you can use that image however you like. It’s covered by Bridgeman.

[20:29] Bridgeman is accepted by CAA, it’s accepted by the Art Dealers Association of America, the AAMD, Art — Association of Art Museum Directors, and so you can rely on Bridgeman in that case. But if it’s a work of art that’s still under copyright, then you’re still going to have basically the same issues no matter where you get the image from.

Dr. Kilroy-Ewbank: [20:50] We have another question about a scholarly publication. Does an academic journal or a university press book count as non-commercial?

Dr. Harris: [21:01] That’s the million-dollar question. [laughs] We knew we were going to get that question because it’s the best question. Non-commercial use is complicated. In the handout that we’re going to distribute and make available, we have a link to describing the fuzziness of commercial and non-commercial use.

[21:23] It’s very fuzzy. It’s fuzzy in the law. There’s no strict line there. For example, if Smarthistory is not for profit, does that mean that however we use images, it’s non-commercial? It’s complicated. Basically, if the purpose is to make money, then the use is commercial, but you should go and look at…we’ll make that available and you can go read a longer discussion of that.

Dr. Kilroy-Ewbank: [21:50] We have a couple of questions that overlap, so I’ll just give a couple of examples. We have some who are asking really great questions about what counts as two-dimensional. There’s one question of a photograph of a book or a manuscript count as two-dimensional or say a photograph of a bas relief, does that count as two dimensional? Or a photograph of a Greek vase, of a painting on a Greek vase, does that count as two dimensional? [laughs]

Dr. Harris: [22:14] Basically, two-dimensional means really two-dimensional, to be really strict about it. I have to admit, there’s some times I’ve wanted to stretch that to include relief sculpture and things like that.

[22:25] Strictly speaking, if there are different points of view, if you can move your head and see the light in a different way or see the sculpture in a different way, then it’s not covered by Bridgeman, strictly speaking.

Dr. Kilroy-Ewbank: [22:38] Does that count also for manuscripts?

Dr. Harris: [22:41] As long as the manuscript is manuscript illumination and it’s flat, I think that counts under Bridgeman.

Dr. Kilroy-Ewbank: [22:49] That’s covered. Let’s see. We have a question about Google Books, if we want to expand on what that is. Some people don’t know what…

Dr. Harris: [22:59] Google Books and Google Scholar, both incredibly helpful, because sometimes I’ll be….I think it’s just books.google.com. If you’re in a regular Google search, there’s that little “more” button and you can specifically search just in books.

[23:22] I do that all the time, because so often images turn up in searches that I think will be great to use, but they’re from really unreliable places. And at Smarthistory, we’re very, very careful about the images that we use and the caption information. We want to be as responsible as we can with the images.

[23:48] What I’ll do is I’ll actually search Google Books to find some reliable caption information. If I find a scholarly book I know, “oh, this is caption information that I can trust.” That in turn can help me do better searches.

Dr. Kilroy-Ewbank: [24:08] We have a question about why is there such a distinction between 2D and 3D, and the work is a form of art? Why is there this distinction in Bridgeman?

Dr. Harris: [24:21] It’s very annoying. The idea that when something is…the idea of Bridgeman, right, we’re talking specifically about Bridgeman here. The idea behind that decision is that as soon as it’s three-dimensional, there is an element of creativity in the photograph.

[24:40] So even if it’s a Renaissance relief sculpture and it’s clearly in the public domain, the photographer can be a little bit to the right, can be a little bit to the left, can look up, can look down.

[24:55] All of a sudden, the photographer can claim an element of creativity. And as soon as that element of creativity is involved, then that photograph can be copyrighted.

[25:06] The underlying work of art is still in the public domain, but the photograph can still be copyrighted because there’s creativity involved. This is why it’s all important for us to share images and to license them. To say, “I took this, but I want scholars to be able to use it” and make what’s possible to use and different kinds of uses available really, really clearly.

[25:37] Sometimes it’s very annoying, because you’ll have a relief sculpture and it feels like a really straight-on image of a relief sculpture, but because it’s 3D, strictly speaking, it’s not covered. I hope that answered that question.

Dr. Kilroy-Ewbank: [25:51] Here’s an interesting question, and we have time for a couple more. What about a photograph of a work of art on the book cover, something like “The Demoiselles d’Avingon.” Is that fair use? Is that covered under Bridgeman?

Dr. Harris: [26:10] I need to be checked on this, but I’m pretty sure book covers are not copyrightable.

Dr. Kilroy-Ewbank: [26:14] Yeah, that’s a good question.

Dr. Harris: [26:17] Very tricky question.

[26:19] [laughter]

Dr. Kilroy-Ewbank: [26:19] I love all these questions.

Dr. Harris: [26:21] It’s really, really tricky, and it’s no wonder that we’ve all been reluctant to breach this digital barrier.

Dr. Kilroy-Ewbank: [26:31] We have a question about teaching, educational use. Is there a difference for educational use?

[26:39] Say you use a Flickr image that has some rights reserved in PowerPoint for class. Do you have to credit that in the PowerPoint, the person who copyrighted it?

Dr. Harris: [26:48] It’s always good practice to have full caption information. If it’s a flat work and it’s just a documentary photo, then there’s no need to do that.

[27:01] Otherwise, probably yes. Especially, obviously, when the Creative Commons license says you must attribute it, obviously then we attribute it. I hope I answered that one.

Dr. Kilroy-Ewbank: [27:15] We have time for this final question. If we don’t get to your questions, please, we’ll either address them in the Facebook, or you can find us there and we’re happy to answer more.

[27:24] For our final question is about how does Bridgeman work in the international copyright domain?

Dr. Harris: [27:28] Oh, don’t ask me that question. [laughter] Some countries basically are adhering to Bridgeman-like rules and regulations, and others are not. It really depends on the country. In Italy, they recently said cultural objects can be used for non-commercial use as long as they’re in the public domain, so photographs can be used.

[28:04] It’s complicated. I’m not a lawyer, as I said, and this is not strictly legal advice. If you live in another country and use the images there, then you’d have to do some research into those regulations.

Dr. Kilroy-Ewbank: [28:20] I think that is the end of our webinar for today.

Dr. Harris: [28:27] I want to answer one more question.

Dr. Kilroy-Ewbank: [28:28] Okay.

Dr. Harris: [28:28] “Is Flickr the best way to share art images with others?” I would say, right now, yes. I wish there was another way, but right now it’s the best way for us to share images with one another.

[28:41] And so if you go somewhere and take pictures, put them up on Flickr, allow non-commercial use, and then we can begin to share our images with one another even more than we do. I’m done.

Dr. Kilroy-Ewbank: [28:53] We have another webinar next week, if anyone would like to join us, about how to make images beautiful that will deal with some really basic tips on Photoshop.

[29:04] If you have more questions, like we said, please reach out to us on Facebook. If you don’t want to be on Facebook, obviously you can find us on Twitter, or you can email us. We’re happy to answer more questions.

Dr. Harris: [29:15] Right after this webinar, we’ll make the handout available both on Smarthistory and also on the Facebook group, the handout and this and the video and anything else we can share that would be helpful. Thanks, everybody.