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 and the internet. While I am not an expert, I did work with Susan Bielstein who actually wrote the book on visual art permissions, so I am hoping that my experience with her can help.

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.  Benefit corporations and non-profits should be especially warybecause 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 if fair use might not apply.  Let’s begin with some important commandments and related gray areas.

1) If your publication (online or print) is connected to a for-profit business, fair use usually does not apply to you. So you will also need to know about public domain law and you will have to pay for permissions.

a. Gray area:  if your business is connected to education (established, accredited 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 non-profit 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:   You must record and save your search efforts in case you are called upon to prove due diligence should someone claim 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.

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, but are by no means the only place to look.

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. The Council of State Archivists is a good directory for US archives or you can start with your local university. Many academic libraries have helpful chat services that will help point you in the right direction.

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 because permissions law is always changing.  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 are disputing this.  A little diplomacy here: 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 may have to gain permission from several entities.  Just a word of advice from your friendly neighborhood permissions jockey.[vii]