Image copyright, licensing, and the public domain


Creative Commons license spectrum

This table shows the various levels of Creative Commons licensing. Read below in this lesson for more information about Creative Commons rights. (Source: Shaddim, CC BY 4.0)

Disclaimer: We are not lawyers and Smarthistory does not offer legal advice about image use. 

To understand this landscape better,  we recommend that you consult the fair use guidelines that have been developed specifically for art history, such as:

The College Art Association’s Code of Best Practices in Fair Use for the Visual Arts

Association of Art Museum Directors Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums

Happily, the trend in the last few years is toward museums sharing their public domain images more freely, and there is often a “download” link on a museum object page.

In this lesson

  • Assessing copyright requirements
  • Copyright that applies to the work of art itself
  • Copyright that applies to the reproduction of the work of art
  • Museum overreach
  • How do I know if an image is licensed for non-commercial use?
  • How do I quickly find images that allow for non-commercial use?

What if I need to assess the image copyright for myself?

In general, there are two levels of copyright to consider:

  1. The copyright that applies to the work of art
  2. The copyright that applies to the reproduction (usually a photograph) of the work of art

Copyright that applies to the work of art itself

This chart outlines different levels of copyright and public domain per U.S. law.

First, you should find out if the work itself is in the public domain. This can be tricky, but generally speaking…

Though there are some important exceptions to works of art published before 1923, in general you can follow these guidelines:

  • If the work was created before 1923, it is likely not protected under United States copyright law—in other words, it is likely now in the public domain in the U.S. (Note that this does not necessarily apply worldwide.)

  • If the work was created
    after 1923, you will need to assess what type of image rights apply to the work itself. This varies. You can usually find this information on the webpage of the institution that owns the work.

Copyright that applies to the reproduction of the work of art

Here, you will need to consider whether the work pictured is two-dimensional (a drawing, painting, print, photograph, etc.) or three-dimensional (a sculpture, monument, building, etc.). Different legal standards apply to reproductions of two- and three-dimensional works.

Although the Seated Scribe is out of copyright, many images of it are still copyrighted. This photo from Smarthistory's Flickr account has a Creative Commons license and can be used for non-commercial purposes. (Seated Scribe, c. 2500 B.C.E., c. 4th Dynasty, Old Kingdom, painted limestone, 53.7 x 44 x 35 cm, The Louvre, photo by Dr. Steven Zucker, CC BY-NC-SA 2.0)

Although the Seated Scribe is out of copyright, many images of it are still copyrighted. This photo from Steven Zucker’s Flickr account is listed “Some rights reserved” and carries a Creative Commons license (CC BY-NC-SA 2.0) that allows for it to be used for non-commercial purposes as long as it is attributed and shared with the same license. (Seated Scribe, c. 2500 B.C.E., c. 4th Dynasty, Old Kingdom, painted limestone, 53.7 x 44 x 35 cm, The Louvre, photo by Dr. Steven Zucker, CC BY-NC-SA 2.0)

If the work pictured is three-dimensional (a sculpture, installation, building, monument, etc.), no matter whether the work itself it is in the public domain or not, you will need to search for a reproduction (usually a photograph) of the work that is public domain or licensed for reuse. You can search in Creative Commons, in Google images (using “tools”), or you can use an advanced search in Flickr (see below for more on this). 

If the work pictured is two-dimensional, and the work itself is in the public domain (see definition above for “public domain”) there is precedent in case-law (known as the Bridgeman case) that states that faithful reproductions of the work are not protected under U.S. copyright. Remember that, while the ruling in the Bridgeman case is widely accepted (including by CAA and AAMD), it is not law.

Museum overreach

Sometimes museums claim copyright on photographs of works of art that are in the public domain (this is referred to by some as “overreach”). Here is an excellent article on this topic. Over the last few years, however, there has been a remarkable shift, with museums (notably The Brooklyn Museum, The Metropolitan Museum of Art, The Walters Art Museum, The J. Paul Getty Museum, Los Angeles County Museum of Art, and others) increasingly offering downloadable high-resolution images of works in the public domain—though much still needs to be done. See the “additional resources” section below for articles about this complex issue.

This print from The Metropolitan Museum of Art is clearly labeled on their website as "public domain," and they provide a link to download a high-resolution version of the image. (View of Pompeii, 19th century, pen and black and gray ink, 25.7 x 34.5 cm, The Metropolitan Museum of Art)

This 19th-century print from The Metropolitan Museum of Art is clearly labeled on their website as “public domain,” and they provide a link to download a high-resolution version of the image. (View of Pompeii, 19th century, pen and black and gray ink, 25.7 x 34.5 cm, The Metropolitan Museum of Art)

How do I know if an image is licensed for non-commercial use?

Museums are increasingly including image rights directly on the webpages where works are displayed. If the page you are looking at does not include this information, refer to the general guidelines available on the institution’s website (usually under “Rights and Reproductions”).

A Flickr CC license as it appears on the photo page

A Flickr license as it appears on the photo page. The icons shown correspond to aspects of the CC license (BY-NC-SA in this case). Clicking on “Some rights reserved” brings you to the corresponding CC license page with a full explanation.

On sites such as Wikimedia Commons and Flickr, licenses are clearly displayed at the bottom of the page. These generally follow the Creative Commons (or CC) licensing format. However, it is very important to understand that images published online may not be labeled with an accurate license. 

There are several components to CC licenses:

  • BY: short for “byline,” meaning you must credit the author of the image
  • NC: “non-commercial,” meaning that the image can’t be used for commercial purposes
  • SA: “share alike,” meaning you need to openly license the work you create using the image in question in the same way that the image itself is licensed
  • ND: “no derivatives,” meaning the image can’t be edited (color changed, cropped)
  • 2.0, 3.0, etc.: usually the license is followed by a version number, referring to the version of Creative Commons licensing under which it was released
A Wikimedia license as it appears on the file page

A Wikimedia license as it appears on the file page

Tip: When using a CC-licensed image, it is common practice to display the license alongside the credit. It is also nice to provide a link to the original image source. For example:

Caravaggio, The Calling of St. Matthew, c. 1599-1600, oil on canvas, (Contarelli Chapel, San Luigi dei Francesi, Rome) photo: Steven Zucker, CC BY-NC-SA 2.0 <https://flic.kr/p/FV2RkF>

How do I quickly find images that allow for non-commercial use?

Note: These tools are useful, but keep in mind that sometimes people put a restrictive license on something in the public domain, or they put an open license on images they have no right to—so reading through the guidelines linked above will help you make good decisions.

Google Image search - licensing options

Usage rights options in Google Images (you must click “Tools” at the right to access this menu)

When searching in Google Images, you can select “Tools” on the right-hand side of the menu, then select an option that fits your needs from the “Usage rights” menu.

Tip: Remember that you can also use the drop-down menus to search for larger-sized images in both Google Images (by clicking “Tools”) and Flickr (by clicking “Advanced”).

Flickr search - filter by license

Flickr search showing licensing options

On Flickr, select the licensing drop-down menu at the far left, and choose the option that fits your needs. The license for any Flickr image is displayed at the bottom of the page on the right. Clicking on the license icons will display the full license on the Creative Commons webpage.

For an image on Wikimedia Commons, you can find the license displayed below the image and author information on its file page.

Learn more about searching for high-quality images in our next lesson.


Additional resources:

Kenneth D. Crews, “Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching” (July 1, 2012), Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, p. 795, 2012.

Museum Image Fees: A call to Arms” by Bendor Grosvenor

”’Can I Use This?’ How Museum and Library Image Policies Undermine Education” on the Smarthistory blog

Cite this page as: Dr. Naraelle Hohensee, Dr. Beth Harris and Dr. Steven Zucker, "Image copyright, licensing, and the public domain," in Smarthistory, June 14, 2018, accessed December 15, 2018, https://smarthistory.org/thinking-about-image-copyright/.