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Free licenses, part 1

I'm back, after an extended hiatus! And I'm ready to tackle the wonderful topic of the Creative Commons.

All photographs -- all works, in fact -- are automatically copyrighted when they are created. Some people are of the mistaken impression that if you don't include a © symbol, it's not copyrighted. This was the case up until 1977, but anything created since then is copyrighted with or without the notice.

This is fine if you want to prevent people from using your images, but what if you want to allow them? You could include a licensing agreement with every work you create, explaining just what you do and don't allow people to do with your images, but for those of us who aren't lawyers, this can be prohibitively difficult. Luckily for us, there is an organization called the Creative Commons which has worked to make it easy for us. (You can learn more about the Creative Commons here.)

The Creative Commons has several easy-to-use licenses that you can apply to your images or other works that will let people know exactly what they can and cannot do with them.

Next week, I'll discuss the cc-by-sa license, which opens a whole new world up to reusing creative content.


Creative content

So by now, if you've been following the site, you might be bold enough to consider yourself an expert on whether images are in the public domain (PD) or not. But tricky cases arise all the time. For instance, there's actually one type of image that can't be copyrighted, that I haven't mentioned so far: the information-only work. Here's the skinny.

One of the most important principles of copyright is "creative content". If an image has no creative content, then it can't be copyrighted. The digits of pi aren't copyrightable, because they contain only "information", not "creativity". Because of this principle, a completely black image, or a simple image of a triangle, is in the PD. In fact, typefaces aren't copyrightable in the U.S. (although they are just about everywhere else), so a picture of a word is also safe to use. But as you can imagine, there's a lot of gray area; that's what we have lawyers for. My advise is, don't push it. If a judge rules that an image has even a minute amount of creative content, it can be copyrighted, and different judges can have different standards.

But one of the pleasant off-shoots of this is that scans of paintings are generally not copyrightable: just the original artwork is. So if a painting was first published before 1923, then a scan of the painting is PD, even if the scan was made recently. A judge ruled in Bridgeman Art Library v. Corel Corp. that copies of artwork produce no new "creative content", so you're off the hook on that one. This opens a whole new array of PD images.

There are lots of great places on the web to find scans of PD paintings and drawings. Be careful though; some of them may be copyrighted if the original piece was first published after 1923, and it may be difficult to tell when a painting was officially published, so proceed with caution.

The three best sites I have found are the Web Gallery of Art, the Webmuseum of Paris, and the Art Renewal Center. The CGFA also has scans of artwork, and will have some pieces not listed in the links above. In addition, many museums, such as the National Gallery of London and the Louvre, sometimes have scans of their paintings available, but these esources are usually somewhat less useful.


Different laws for different countries

As I described in the previous post, different countries have widely different copyright laws. For instance, in Mexico copyright expires 100 years after the author dies! Civil-War-era pictures taken in Mexico would still be under copyright so long as the author died less that a century ago. But that's Mexico's copyright. In the U.S. it would be considered public domain (PD), and you could use the image any way you like. Just don't try to sell copies in Mexico. Other countries have more liberal copyright laws. In Japan, copyright expires 50 years after the author (or photographer) dies, so a World War II photograph taken under Japanese jurisdiction would be public domain in Japan if the photographer died more than 50 years ago. (A photo taken in the U.S. at the same time would still be under copyright.) It simply depends on the country.

In this global village, however, these things get murky. For web pages in general, the country where the servers reside is the country whose laws have to be obeyed. And since the U.S. is the Ultimate Big Boy On The Block, so long as you live in the U.S. and follow U.S. copyright rules, you should be okay. If you live elsewhere, of course, your rules are different.

So what are the U.S. copyright rules for materials published outside the U.S.? Happily, there are only limited differences. If any photograph was first published before 1923, then the U.S. considers it PD no matter what the country of origin thinks. It might also be PD if (a) the work was created before 1977, and (b) the work was considered PD in its country of origin in 1996. I know, that's horribly, unnecessarily complicated. But this is copyright law we're talking about. As a practical matter, if the photo's country of origin considers the photo PD, then you're safe using it as if it were PD, even if the photo was taken after 1922.

In most countries, copyright expires 50 years after the death of the author (or photographer). In European Union countries, and countries that are hoping to become EU countries, copyright expires 70 years after the creator's death. Central and South America are a little weird. A list of the copyright terms for each country can be found here. But you usually have to find out when the photographer died, which is difficult in practice, so if you don't know, you're only safe if the photo was published before 1923.

There's one more complication, but it's a good thing. The rules I gave you above are a result of bilateral or multilateral copyright treaties between the U.S. and other countries. But there are a few countries that don't have any copyright treaties with the U.S. For works produced in those countries by residents of those countries, the U.S. considers them not copyrightable and therefore PD. These countries are Bhutan, Ethiopia, Iran, Nepal, San Marino, and probably Yemen (although that situation is a bit murky.) Also, some countries have only recently entered into such treaties with the U.S. If a work was produced by a resident in Iraq before 2004, in Afghanistan before 2002, or in countries of the former Soviet Union before May 27, 1973, then the work is considered uncopyrighted and PD in the U.S.

Here are some resources which are considered public domain because their host country does not have a copyright treaty with the United States. Again, be sure that the photo was taken in the country in question, by a resident of the country (and not a by tourist or foreign reporter).


Old images in the public domain

Besides images that were never copyrightable in the first place, some images used to be copyrighted, but their copyright has expired. These images are also in the public domain (PD).

There is a wonderful abundance of older images available on the World Wide Web, some of them out of copyright. Here are a few of my favorite sites featuring old PD images:
All of those above are PD due to age. So how do you know if an old image is old enough to be PD or not? It's both really simple, and really complicated.

The simple answer is, if a picture (or anything else) was first published in the U.S. before January 1, 1923, then its PD (in the U.S.). If it wasn't, then it's probably not. For most purposes, that's good enough. So long as you only deal with those pictures, you're guarranteed safe. But for other cases, the devil's in the details.

But what if the image was never published? If an image was never published (or if it was first published after 2002 even though it was created before 1935), then different rules apply. If an unpublished work was created by a known author with a known year of death, then the work is in the public domain if the author died before 1935. If the unpublished work is by an anonymous or corporate author, or if the year of death for the author is not known, then the work is in the public domain if the work was created before 1885. This often requires research to determine. Copyright lawyers make good money looking stuff like this up.

To make things more complicated, if an image was first published after 1923, the copyright might have expired anyway under certain circumstances (although it's unlikely). And remember that if the copyright has expired, that means the image is PD. Here are the official exceptions as to why an image's copyright might have expired, even if it was first published in the U.S. after 1923:
But those are rare exceptions. Failure to properly renew copyright is the reason that, for instance, the movie Arsenic and Old Lace is in the Public Domain, even though it was released in 1944. But most of the time, if something was published after 1922, it's probably copyrighted.

All this refers to images published in the U.S. Different countries have different copyright laws. But I'll deal with this in another post.


U.S. Government images

As I indicated previously, the U.S. Government is not authorized to claim copyright. For that reason, any image that is taken by an employee of a U.S. Government agency, acting in an official capacity, is in the public domain (PD). Here is a terrific web portal to various government images:
However, as the page says, not all images in the list are actually PD. A few of them are copyrighted by quasi-government agencies, such as the Smithsonian Institution. Even these have rather permissive licenses. If you wanted to download and use this picture of a fish for non-commercial purposes, Smithsonian's license says that would be fine. But if you tried to make money off of it, they could sue you. (Here is their official policy.)

This is one thing I'm very proud of about my country. If you wanted to use an official British government image, you have to ask the Crown's permission. The same is true of nearly every country on the globe. But if you want to use a U.S. government image, even if you want to make money off it, you're free to do whatever you like with it.

Here are some other great sites to find U.S. Government images, all in the public domain. These are links to image portals themselves, not to the department's main web site.
And the list goes on and on. I'll add more links as time permits. These should keep you for a while.

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All information on this site is correct to the best I can determine; however, nothing on this page should be construed as legal advice, and I cannot be liable for any damages if this information is inadvertantly incorrect.