Keeping it Real: Fair use, Images, and Gaining Permissions.

Cornell has a great checklist for determining if your use of a copyrighted original qualifies as “fair use.”  Unfortunately it really only applies to academic uses and once your project steps one toe outside scholarly territory, fair use law becomes murky. This is particularly true with images. While I am not an expert, I did work with Susan Bielstein who actually did write the book on visual art permissions, so I am hoping that my experience with her can help.  My job:  research images to see if permission is required and to acquire it when necessary.

It is true that we were using the images for hard copy publication and for profit, but due to the scholarly nature of the University of Chicago Press, and the fact that the Press never actually made a profit, our acquisitions practices existed in a weird hybridized permissions limbo. We couldn’t just fill out a form, pay our money and make our choice because there simply was not a lot of money and that was often dependent on grants.  So, in order to keep costs down, permissions requests often called for a certain combination of diplomacy, humility, and persistence that anyone on the edge of educational services or slightly outside the wall will need to know.  Non-profits, I’m also talking to you.

So, why am I telling you all this when we are supposed to be discussing fair use and the internet?  Well, because if you want to use images that you did not create or photograph yourself, you probably need to learn how to seek permissions, or at least learn some terminology.  Let’s begin with some important fair use commandments and related gray areas.

1) If your online publication is connected to a for-profit business, fair use does NOT apply to you. So if you want to avoid paying fees for permissions, what you really want to know about is public domain law.  This is a different set of problems and does not necessarily relate to fair use so we will not discuss it here.

a. Gray area:  if your business is connected to education (established schools), you may be able to get permissions fees waived if you ask nicely, but you will still have to gain permissions.

2) If your online publication is related to a non-profit business – and by non-profit, this means that the business is registered as such and you state this on your taxes with your non-profit FEIN tax number – you will need permissions for all copyrighted material, but you may not always have to pay for them.

a. Gray area: If your non-profit offers classes, you may use copyrighted images according to academic guidelines for those classes only (see below)

3) If you are an educational institution, as long as your images are limited to use by students for a limited period of time (usually one school term) on a private or password protected site, for educational purposes only, and you only use images that are absolutely necessary.  HOORAY!  You won’t need any permissions.

a. Gray area:  Fine art students will need to make sure that they are not infringing on fair use laws when using images for transformative use.  Instructors and students will need to keep up on recent developments in fair use law and keep current on lawsuits regarding transformative use in order to make the best decisions regarding this touchy area.[i]

4) If your website is not related to any kind of business or educational institution, fair use does not apply to you and you will need to seek permissions for image use.

5) If you want to use an image that may or may not be copyrighted, and you have made a good effort at finding the copyright holder, but could not locate him/her/it[ii]; this image is considered an “orphan” and you may publish it.  CAVEAT:  Make sure you document the search just in case someone claims copyright infringement.[iii]

In a nutshell, outside of pure and limited academic use, you will probably need to make sure that you have permission to use any copyrighted images for web publication.  Sorry.

Now, here is a basic primer on how to go about getting permissions when you do need them:

1) Find the copyright holder

a. If you are getting the image from a book or other publication this should be fairly easy as this information should accompany the image

b. If the image is of an art work of any kind you may search for copyright info by author name, image source, or through an image retrieval method.

i. Art Resource and ARTstor are good places to start

ii. Lesser known artists can be found through artist representative groups such as VAGA or the Artist’s Rights Society[iv]

iii. If you have no info, contact people who might know.  Librarians and archivists are the best start.

2) Make extremely polite contact with the copyright holder.  There are some excellent examples of form letters in “Permissions: A Survival Guide” by Susan Bielstein.[v] Remember that you need to explain any special circumstances that can help you gain a discount or fee waiver (non-profit, educational purposes etc.)

a. If the copyright holder is a business or is represented by a protective agency, contact the permissions representative to ask if there are any special instructions for non-profit agencies, educational institutions, etc.

b. Follow those instructions to the letter.

c. Send a thank you letter.  Send a really nice thank you letter if you receive any special consideration. If you do they may remember you and give you special treatment again.

3) If your image classifies as public domain (100 years after death of author is a basic guideline), the photograph may be protected by copyright, so check.  It has recently been judged that photographs that simply represent artworks and do not display any creative license are not copyrightable; however museums and archives especially are disputing this.  So if you will need to obtain any images directly from a museum, representatives may decide not to do business with you should you assert this point.[vi]

In conclusion, it is better to be safe than sorry when it comes to copyright law, so make sure that you get the permissions you need.  It’s a lot cheaper and easier than a lawsuit.

And FYI, if you ever want to use an image of a Picasso, you may not only need to shell out the big bucks, but you will have to gain permission sometimes from three or four entities.  Just a word of advice from your friendly neighborhood permissions jockey.[vii]