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Historical photos and "fair use"
skunker




msg:922387
 12:26 am on Nov 14, 2005 (gmt 0)

Okay folks, here's the deal. I have a website that displays thousands of historical images (some in the public domain, some not) from the early 1800s to the mid 1940s. I am guessing that most of these images were government works (e.g. government hired photographers, military photographers, etc).

First, some questions about copyright:

1.) Can I publish Civil War photos on my site that were taken from, say, the University of Maryland's archives? The University says that I can not do so. But, my site falls under the "Fair Use Doctrine" under U.S. copyright law that provides for the licit, non-licensed citation or incorporation of possible copyrighted material. This means that those images, according to US law, can only be used by my website for purposes such as criticism, comment, news reporting, teaching, scholarship, or research and is therefore not an infringement of copyright as this website's sole purpose is to educate and research the Civil War era.

2.) With that said, can I safely display these photos on my website? How can the University tell me what I can't do with these photos if they were taken by government entities during the Civil War?

What if someone had a collection of their photographs that their grandfather took during World War I and then donated them to the University. Can the University copyright these photos even though the grandfather took them for the government?

But, what happens if the grandfather took these photographs for his personal use during WW1 (or WWII). Does that make it "government works" and is therefore still required to be in the Public Domain as per the copyright law?

And, finally, lets say I have a bunch of images on my website that are not in the public domain, but falls under the "fair use" doctrine....and what if I run a bunch of popunders, adsense, etc and make a killing off the traffic? I am therefore making money...but I am not selling the photos...am I still breaking the "fair use" doctrine by making money this way?

I look forward to hearing your feedback. I think I am walking on very shallow water and may need to start rethinking some of my marketing approaches.

Thanks for your time.

 

stapel




msg:922388
 6:43 am on Nov 14, 2005 (gmt 0)

Considering that you don't seem to know the actual origin and history of ownership of the artwork you wish to use, it would seem perhaps a bit presumptuous to declare them to be free of copyright. And on what basis do you assume that the personal property of soldiers is actually government property...?

What are you doing with these images, that you feel that your use of them falls under the "Fair Use Guidelines"? (Note that the term is "Guidelines", not "binding legal authority".) You reference "review" and "criticism" and such. Does your site, for instance, discuss the evolving use of photography and photographic techniques?

If you are using the images to make money, then this may lead toward a decision of your use not being "Fair". You don't have to sell the actual pictures to make money on them. If the pictures are the "honey" that draws the "flies" to your advertizing "pots", then this use could, on its own, be judged as disproving your claim of "fair use".

For specific information, however, you should consult with a copyright attorney or other trained professional.

Eliz.

A Visit to Copyright Bay: Copyright, Educators, and "Fair Use" [stfrancis.edu]
Stanford Univesity: Copyright & Fair Use [fairuse.stanford.edu]
Copyright Management Center: Fair Use Issues [copyright.iupui.edu]
Copyright and wrongs: When copying is OK [efuse.com]
CETUS: Fair Use of Copyrighted Works [cetus.org]

cellularnews




msg:922389
 9:52 am on Nov 14, 2005 (gmt 0)

I am guessing that most of these images were government works (e.g. government hired photographers, military photographers, etc).

Rather than guessing - why not find out for certain?

Can I publish Civil War photos on my site that were taken from, say, the University of Maryland's archives? The University says that I can not do so.

Asked and answered in the same paragraph

But, my site falls under the "Fair Use Doctrine" under U.S. copyright law that provides for the licit, non-licensed citation or incorporation of possible copyrighted material. This means that those images, according to US law, can only be used by my website for purposes such as criticism, comment, news reporting, teaching, scholarship, or research and is therefore not an infringement of copyright as this website's sole purpose is to educate and research the Civil War era.

If your web site is in fact a historical study and education site, as opposed to just a gallery - then you would potentially be correct - it would be for a legal person to make the final decision though - not you.

How can the University tell me what I can't do with these photos if they were taken by government entities during the Civil War?

If they now own the copyright to the photos - regardless of who took them originally, then they can tell you what ever they want to tell you.

What if someone had a collection of their photographs that their grandfather took during World War I and then donated them to the University. Can the University copyright these photos even though the grandfather took them for the government?

It all depends on whether the copyright was transfered as well - if it was, then the University can do with them as it wished.

But, what happens if the grandfather took these photographs for his personal use during WW1 (or WWII). Does that make it "government works" and is therefore still required to be in the Public Domain as per the copyright law?

Nope - they are personal, and he retains coptyright until he decides to transfer that to someone else, or it expires.

And, finally, lets say I have a bunch of images on my website that are not in the public domain, but falls under the "fair use" doctrine....and what if I run a bunch of popunders, adsense, etc and make a killing off the traffic? I am therefore making money...but I am not selling the photos...am I still breaking the "fair use" doctrine by making money this way?

So long as you are using them as "fair use" - then you are allowed to use them commercially - but be careful that the usage is genuine fair use for editorial, and not just padding and gallery useage. If you are using them commercially, then you are MORE likely to be sued than if you were just a missguided hobby user.

Squiz




msg:922390
 8:16 am on Nov 20, 2005 (gmt 0)

How can the University tell me what I can't do with these photos if they were taken by government entities during the Civil War?

Don't confuse "ownership" with "copyright holder" - the two can be separate legal entities. For example, if I'm commissioned to take photos for a magazine then I own the copyright to the photos but the magazine owns the photos themselves. This means (1) they can't use the photos without my permission since I own the copyright but also (2) I can't use the photos without the magazine's permission since they own the photos themselves.

If the photos are out of copyright that does not mean they are in the public domain - it simply means the original artist no longer has a claim to them. But it is still up to the owner to decide what can and can't be done with them. They might have paid tens of thousands of dollars for the photos so why should you get to copy them for free? ;)

Most copyright matters can be resolved amicably but you really should have contacted the University up-front before using the pictures - they might have been more agreeable to what you were doing if you explained your site beforehand.

willjan




msg:922391
 11:31 pm on Nov 20, 2005 (gmt 0)

"Fair use" also is measured by distribution. If it is limited to a classroom in a course, it is pretty same. But a website is available world wide and can be seen by thousands, that pushes against the limited use intended by the "fair use doctrine".

Willjan

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