Department of Art & Art History

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Visiting Artists: Dutes Miller & Stan Shellabarger, 2011
Visiting Artists: Dutes Miller & Stan Shellabarger, 2011

Copyright

To learn more about the resources and services offered by the VRC, explore the links to your left

IMAGES, COPYRIGHT, AND THE PUBLIC DOMAIN
The Visual Resources Center provides and facilitates access to images that depict art and other forms of creative expression. We also assist our faculty members and students with the making and editing digital images that are themselves creative artwork. These images and artworks are generally both “original works of authorship,” which are automatically protected by copyright from the moment of their creation. This protection grants a work’s creator the exclusive right to distribute, reproduce, make derivative copies, and display or perform the work publicly. The majority of images in the Art and Art History Visual Resources Image Collection and other online sources are protected by copyright.

This protection, available to both published and unpublished works (including images), lasts until the copyright expires and the work passes into the public domain. Works in the public domain are not protected by copyright, which means they may be used freely by anyone. Aside from the expiration of copyright, original works of authorship can be in the public domain if a) the creator failed to satisfy statutory formalities to maintain the copyright, b) the creator of the work is the U.S. Government, or c) the creator has formally relinquished his or her rights under the law. Facts are not covered by copyright.

A complication regarding images of art and architecture is that they frequently involve two layers of copyright protection: that of the owner of the underlying work (e.g., a sculpture), and that of the owner of the image depicting that underlying work (e.g., the photograph of that sculpture). While the underlying work may be in the public domain, a photograph of it may simultaneously be protected by copyright.

In the U.S., any creative works (including images depicting creative works) published before 1923 are in the public domain. The status of works and images created 1923 is not always straightforward. Determining whether a work or image is copyrighted and by whom can be sometimes be difficult, but it is important not to assume that an image is free to use for any purpose. A common misconception is that images posted on the Web are free to reuse without copyright considerations.

EXCEPTIONS TO THE EXCLUSIVE RIGHTS OF COPYRIGHT HOLDERS

Fair Use
Sections 107 through 118 of the Copyright Act provide exceptions to the exclusive right of copyright owners to reproduce or to authorize others to reproduce their work. One of these addresses “fair use.” Section 107 contains a list of circumstances in which reproducing a copyrighted work may be “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.

Section 107 also sets out four factors to be considered by courts of law in determining whether the fair use exemption applies:

  • the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  • the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between fair use and infringement can be difficult to define. The law stipulates no exact number or percentage of copyrighted images from a particular source that may safely be copied without permission. Citing or attributing sources does not substitute for permissions from copyright holders. Educational use does not grant the right to unlimited reproduction of copyrighted materials – the courts examine all four fair use factors. In the reproduction of copyrighted materials for educational use, the effect on the market or the potential market may be especially important to consider. Legal counsel at CU has recommended against digitizing images that are a) available commercially in digital form at a reasonable cost, or b) slides purchased from vendors or museums without obtaining permission first. Access to commercial and fair use images should be limited to the CU community (e.g., classroom display and protected web sites only).

Copyleft and Creative Commons
“Copyleft” is a more flexible alternative to the “all rights reserved” status that copyright law automatically creates. It is a “some rights reserved” licensing approach that falls somewhere between public domain and absolute copyright protection, in which a creator can choose to surrender some but not all of his or her exclusive rights. For example, a licenses might allow others to reproduce and distribute a work, as long as the creator is credited.

Creative Commons (CC) is a non-profit organization that provides creators with a set of these kinds of copyleft licenses and tools that they can easily assign to their works free of charge. They also offer a convenient portal to search services provided by other organizations that help users find works with Creative Commons licenses. When searching for CC licensed works, it is important to note the following:

“You should always verify that the work is actually under a CC license by following the link. Since there is no registration to use a CC license, CC has no way to determine what has and hasn’t been placed under the terms of a CC license. If you are in doubt you should contact the copyright holder directly, or try to contact the site where you found the content.”

RESOURCES

  • Artists, authors, and scholars who wish to understand their rights as creators should know about the primer titled “So What … About Copyright?” [PDF]. From Public Knowledge, this set of essays provides creators with an overview of copyright law and current policy issues that may affect them and their work.”

  • An important resource for educators is the Visual Resources Association’s Statement on the Fair Use of Images for Teaching, Research, and Study. It describes six uses of copyrighted still images that the VRA believes fall within fair use. The six uses are: 1) preservation; 2) use of images in teaching; 3) use of images on course websites and in other online study materials; 4) adaptations of images for teaching and classroom work by students; 5) sharing images among educational and cultural institutions to facilitate teaching and study; and 6) reproduction of images in theses and dissertations.
  • The University of Colorado Boulder has created its own guide to copyright. It includes overview of copyrighting your own work, file sharing, fair use, the TEACH Act, and other useful information.
  • Stanford University Libraries has created a comprehensive overview of copyright law and fair use guidelines. It includes links to US government web pages, current legislation addressing these issues, and critical commentary on current law. The pages on fair use are of particular interest to educators and students.
  • Cornell University has created a user-friendly chart for determining a work’s public domain status.