Editor’s note: Also check out Carrie’s tips on public performance rights.
Everyone can be a novice graphic artist using computer technologies to capture appealing designs, images, and photos found on the Internet for use in presentations, Web sites, and promotional materials. Some may pause and wonder, “Is this a copyright problem?” The answer, of course, is “it depends.” There are no hard and fast rules in the copyright law to tell us whether our use of an image is lawful. All we can be sure of is that the copyright law protects exclusive rights of creators or rights holders except when it is considered fair or reasonable for a user to exercise an exclusive right. It is a matter of judgment. Given how you want to use an image and why you want to use it balanced against the economic interests of rights holders is the issue of concern.
Here are some things to keep in mind. You must assume that any image or photo that you find on the Internet is protected by copyright unless you know otherwise. Just because the image is freely available on the Internet does not make it copyright-free. Copyright protects original, creative works fixed in a tangible medium at the point those works are created. It is automatic. Even if a work does not have a copyright symbol, it is probably protected by copyright. Providing attribution or a giving a citation for the image does not protect one from copyright infringement. You should always provide attribution because it is an ethical thing to do but it has no bearing on United States copyright law.
Additionally, since rights holders have the exclusive right to make derivative works based on their original works, when modifying an image, graphic, or photograph, you may be reproducing the work, distributing the work, and creating a derivative work all without the prior authorization of the rights holder. If you use the image on poster or slides, you may also be violating the public display right.
Moreover, using images and graphics is considered to be a “worse” infringement of copyright law because of the creative nature of art. Courts consider art, fiction, poetry, motion pictures, and others to be more worthy of copyright protection because of the notion that these works require more creativity than nonfiction, news reporting, or scholarly works. This is in part due to the fact that nonfiction has a greater tendency to include facts, which are not protected by the copyright law.
So what is a programming librarian to do when she simply wants to include an image on a PowerPoint slide? There are a few options. You can use images, graphics, and photos that are in the public domain or are not protected by copyright. Yes, public domain works are generally old and perhaps not that flashy, but they are also a treasure trove. Think of the works created by the WPA during the Great Depression—many are public domain because they are government works that cannot be protected by copyright. One can also use images found on Web sites that have copyright-free content. Another option is some stock photography or materials posted on the Creative Commons Web site. The Creative Commons includes the works of rights holders who have forfeited some of their rights of copyright, perhaps allowing the free and full use of their work in not-for-profit situations.
A programming librarian may also determine that using a work without prior authorization is fair or reasonable given the kind of use that is made. A fair use determination is the same type of judgment call that courts use to determine the rulings of infringement cases. To make this judgment, consider the four factors of fair use in the copyright law (U.S.C 17, § 107):
“…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
When making your fair use determination, consider how you will use the work? Will it be a one-time use on a poster? Will it be used on a publicly accessible Web site indefinitely? Are you using the work on library letterhead or the newsletter? In general, if the use is short term or is not be broadly available to the public, the use is fair. In addition, consider why you are using the work? Is the use necessary to illustrate a point? Will you use the work in a way that is “transformative,” making use of the work in new, socially beneficial ways not anticipated by the rights holder? In these situations, courts have tended to rule these uses as fair. What about the market for the original work? Are you negatively affecting the sales for the original work? Are you free riding on the work of the rights holder, making money on the use without compensating the rights holder? These uses generally are not considered fair.
Two final options—you can seek the permission of the rights holder to use the image. If consent is given, you may have to pay a fee for the use. Or you can decide to forgo the use altogether after determining that the use is not reasonable given the particular situation.
As you can see, using copyright protected images, graphics, and photos is a more complicated copyright proposition. Highly creative works are more protectable, and the kinds of ways that these works may be used generally involve more than one exclusive right. Luckily there are copyright-free options available, and with new digital technologies, you can more easily create your own original work for inclusion in programming materials.