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Copy Photography Computator

An Interactive Program to Assist Visual Resource Professionals in Assessing Intellectual Property Rights Affecting the Educational Use of Derived Images

Introduction

Before using this program to assess the layers of rights in a given image, the user should first become familiar with the fundamental Principles and Definitions essential to the decision making process. Also, the user should read and understand the Advisory Notice before acting upon any decisions made through the application of this program.

Purpose and Function

Each photographic reproduction of a work of art may be encumbered by different "layers" of intellectual property rights, any of which may potentially restrict its use in certain ways. Visual resource professionals are increasingly called upon to provide images to their patrons for use in applications such as multimedia and web design, and even to advise them regarding the probable legality of specific acts of copying or "re-purposing" such images. This program is intended to assist visual resource professionals, and the communities they serve, in assessing the layers of rights in images on an individual, item-by-item basis. Its goal is thus to increase image use options within a margin of safe practice by taking the user through a directed series of questions and responses.

Principles and Definitions

The underlying work is the original created entity which is the subject, or content, of a photographic reproduction. This subject can be a unique object, such as a painting, a sculptural work, or a building (if constructed or published after December 1, 1990). It can also be a work produced in multiples, such as a poster, a manufactured object (e.g. an Eames chair), or a photograph which is itself regarded as an original work of art. It may even be an electronic work, such as an artist's original digital image, so long as it is somehow "fixed" in a tangible form.

For further information, see the following resources:

A photographic reproduction is a surrogate image, the purpose of which is to record the physical appearance of an underlying work. There are two broad categories of photographic reproductions, which differ fundamentally not only in their intent, but also in their status as intellectual property:

a)  The photographic documentation provides the viewer with an exact visual record of the underlying work, one that is, ideally, both accurate and unbiased; hence, it is specifically not a creative interpretation or commentary. Typical examples include photographs documenting paintings, drawings, prints, and other two-dimensional works.

Most such documentation photographs, because their stated purpose is to provide nothing more than a literal and faithful copy of an existing work, do not themselves meet the requirement for protection under the U.S. Copyright Act, which specifies that any derivative work must manifest a significant and discernable degree of original intellectual content to so qualify. The "non-copyrightability" of such photographs is a principle clearly articulated in the Bridgeman vs. Corel case adjudicated in November, 1998.

b)  Some photographs, particularly those which have as their subjects three-dimensional works such as architecture or free-standing sculpture, are more appropriately understood as being photographic interpretations. Photographs in this category may introduce highly subjective variables, including angle of view, selection of background, and creative use of natural or artificial illumination, to accentuate or reveal a particular aspect of an underlying work. Depending on the nature and degree of original content, interpretive photographs may be regarded as being unique derivative works in their own right, even if their primary purpose is to represent the underlying work. As such, they may qualify for copyright protection.

Either of these basic types of photographic reproduction may be produced in many formats: slides, negatives, transparencies, digital files. Any one of these formats can then provide the means for producing various paper copies (e.g. postcards, posters, book illustrations, printouts from laser copiers); or, through copy photography, to produce slides; or, through scanning, to produce digital image files. Any one of these secondary copies may, in turn, provide the means for producing further "third-generation" (and beyond) copies.

The legality of each of these possible acts of copying or transforming an image depends on many factors. Each image must be separately evaluated in regard to the particular use or application contemplated. This evaluation should begin by ascertaining the following:

  1. The extent of copyright coverage in the underlying work depicted.

  2. The extent of copyright coverage in a particular photographic reproduction of the underlying work.

  3. The extent of any contractual limitations restricting the potential use of a particular image according to the specific terms of its acquisition from a provider or other source.

For further information, see the following resource:

When a work is protected by copyright, the creator or owner secures not only physical control of an intellectual property such as a work of art, but also legal control of a "bundle of rights" pertaining to that work -- which include the exclusive right to copy, display, disseminate, or reproduce it. These rights are granted for a specified, limited period of time; upon expiration of this time, the work reverts to Public Domain status. Under the terms of the current U.S. law, which went into effect on January 1, 1978, an original work is protected from the moment it is "fixed in permanent form" by its creator. Under the previous law of 1909, however, copyright was not automatic; it had to be sought and secured by a procedure detailed in Sections 202.3 and 202.4 of the Copyright Act. Failure by a creator to comply with this procedure could render invalid any subsequent claims of copyright protection for a given work.

Prior to 1989, any work for which protection was claimed under the U.S. Copyright Act was required to be published "with notice." In other words, it had to include a valid notice of copyright, said notice to consist of all three of the following elements:

n.b. -- While failure to provide adequate notice according to this formula did not automatically void copyright, it would make any claim of infringement extremely tenuous and difficult to maintain in court. Moreover, official registration with the Copyright Office of each such work within a reasonable time was required to validate any claim. Many commercial images -- slides, postcards, posters, art prints, etc. -- distributed in the U.S. prior to 1989 were not in compliance with these provisions, particularly in regard to the requirement that providers date reproductions for which they claimed coverage. In addition, most were never officially registered, as required to substantiate any claim for protected status.

For further information, see the following resources:

A work in the Public Domain is not protected by copyright, and may be used freely by anyone for any purpose, without the need to obtain permission or authorization. A work may enter the Public Domain by declaration of the creator or owner (assuming that the rights have not been granted to another party). Under the previous Copyright Act of 1909, a work could also revert to the public domain through failure of the creator or owner to secure valid copyright according to the required application and registration procedure. However, the most common way by which works enter the Public Domain is by expiration of copyright protection, which under the law is granted only for a specific, limited period of time. It is the express intent of the Copyright Act (itself an implementation of Article I, Section 8 of the U.S. Constitution) that all intellectual property will over time thus revert to the Public Domain.

Works published prior to 1923 have already reverted to public domain status. Hence, most historic works of art are not subject to copyright in the United States.

For further information, see the following resources:

The principle of Fair Use, as established in Section 107 of the U.S. Copyright Act, attempts to provide for certain socially beneficial uses of copyrighted works, including non-profit, educational uses, within clearly specified limitations, while otherwise maintaining intact the rights of the creator or owner of that property. The educator who acquires a copy of a work under Fair Use implicitly acknowledges the existence of the rights of the creator or owner, and therefore accepts limitations upon the nature and extent of uses that can be made of such a copy.

For further information, see the following resources:

Summary

Most photographs of works of art will fall into one of the following three categories. It is an appropriate responsibility of the visual resources professional to determine in which category each given image belongs on a case-by-case basis, and also to assist users in understanding the distinctions among these categories -- along with their practical and legal ramifications -- in terms of the various potential applications and extended utilizations of a photographic reproduction. This is an especially crucial responsibility when assisting institutions or individual educators in determining whether it would be appropriate and legal to digitize a given analog image (slide) for "re-purposed" website display.

CATEGORY I:  The underlying work is protected by copyright.
CATEGORY II:  The underlying work is in the Public Domain, but the photographic reproduction itself exhibits a degree of uniqueness or originality sufficient to qualify it for copyright protection.
CATEGORY III:  The underlying work is in the Public Domain, and the photographic reproduction does not itself exhibit a significant and discernable degree of original intellectual content sufficient to qualify for copyright protection.

It will be obvious to anyone using this decision-making guide that there is not always a clearly definitive "correct" answer regarding various possible uses of a given image. Members of the Visual Resources Association are professionals; one of the traditional distinguishing benchmarks of the professions (law, medicine, etc.) is that practitioners are trained to make judgment calls in cases where there may be no obviously clear answers. Some of the decision-making processes outlined in this program require the user to make judgment calls of this sort -- such as those regarding the historical chronology of an artist or an individual work of art, or the relative uniqueness of a particular photographic image. As individuals well-practiced in the comparative evaluation of photographic reproductions, visual resources professionals are particulary qualified by background, training, and experience to assist their organizations in making such decisions

Advisory Notice

While it is the intent of this program to set forth acceptable parameters of good practice, intellectual property law is in a state of constant evolution through both legislation and litigation. The Copy Photography Computator program is provided as a public service to assist members of the visual resources profession in making decisions regarding image use; it does not constitute definitive legal advice, and should not substitute for appropriate consultation with institutional counsel. In some instances, the policies of individual institutions may place additional restrictions on some of the practices outlined in this program.

Users should also understand that this program is based on current U.S. copyright law, and may not be fully applicable to other jurisdictions. The decision making process presented in the Copy Photography Computator program deals specifically with images obtained through copy photography or scanning from printed sources, whether the output is intended to produce analog slides for classroom display, or to produce digital image files for a variety of purposes. The digitizing of purchased commercial slides, or the extended use of digital images obtained under various licensing arrangements, may be further restricted or prohibited altogether by specific contractual terms. Provider contracts, under which a user obtains images only for specific purposes and/or periods of time, may impose additional conditions which limit, or render illegal, various uses otherwise permitted under Fair Use or the right of the Public Domain. Visual resources professionals, and their patrons, should therefore evaluate carefully their ability (and intent) to comply with such restrictions when selecting image sources from among the various available options.

ATK/3d rev:  4/25/2001

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