Public Domain Images

Public Domain Images—Are You Legally Compliant?


Using images found online has become common practice. Photos, graphics, book covers, illustrations, and charts — people constantly use images to enhance their content on websites, blogs, and marketing or educational materials. Before using an image that is not yours, whether copying, distributing, or adapting the image, it is imperative that you avoid running afoul of the copyright laws.

If the image is copyright protected under US law, you have a few options. Either get permission (via a license for a fee or free) or the use must fall within the fair use exceptions. See my previous article on using copyright protected images for how to comply with copyright restrictions. Some images, however, are not copyright protected and can be used without permission if those images are in the public domain.

What is public domain?

Public domain is a legal term and a fairly detailed area of law that refers to creative materials not protected by intellectual property laws (i.e. copyright, trademark, or patent). In general, when creative work enters the public domain, the public owns it and anyone can use it without securing permission. Once the work is in the public domain, no one owns it.

When does an image enter the public domain?

There are three main avenues for an image to become public domain material:

  1. The image is no longer under copyright protection (either the copyright expired or the copyright owner for a work published before 1964 failed to renew the copyright).
  2. The copyright owner dedicated the image to the public domain.
  3. The image failed to meet the requirements for copyright protection.

The image was on the Internet, so it’s public, right?

Nope. Good try. An image is not considered in the public domain just because the image is available online or on any other public forum. Also, just because there is no copyright notice on the image, do not assume the image is freely available to use. Under the copyright law, copyright notices on creative work are optional, even though it is always a good idea to do so.

When does a copyright expire?

The public domain laws are a tad confusing for when a copyright expires due to numerous law changes after 1977. Here is a chart from Cornell University I keep handy to help navigate what when a copyright expires and enters the public domain. Basically, any image published before 1923 is no longer copyright protected and has entered the public domain. Images published between 1923-1977 without copyright notices are also in the public domain. If a work was published before 1964, the copyright owner must renew the copyright or the work falls into the public domain.

When is a creative work dedicated to the public domain?

Authors of creative work will sometimes choose to relinquish copyright protection and dedicate the work to the public. The US copyright laws do not actually provide a means for an author to abandon their copyright. Technically, work dedicated to the public domain is a public domain license. Such a dedication occurs via an express authorization by the copyright owner (which sometimes is not the author but the employer if the work was created as a “work for hire”). Look for unequivocal statements that give up all rights to a creative work like: “No Rights Reserved,” or “This work is dedicated to the public domain.”

Copyright owners sometimes file a statement of abandonment with the Copyright Office recording their intention to relinquish all rights in a creative work. There is no requirement to file such a statement, and in my experience, using this method to dedicate work is not the norm.

Authors of creative work tend to dedicate it to the public via Creative Commons, either by using:

  1. the CC0 (sometimes seen as CC Zero) designation, which is a “no copyright reserved” option that relinquishes all copyright rights in a work and dedicates it to the public; or
  2. the public domain designation, which is a copyright symbol with a slash through it that means the author of the work has waived all rights to the work worldwide.

Images dedicated to the public in the above manners are freely available to all to use. Without such an authorization, do not assume the work is in the public domain. You can always contact the copyright owner for verification of a dedication if you are unsure. And of course, it is always nice to give author’s of creative work attribution, even for work in the public domain.

When does a creative work not meet the requirements for copyright protection?

For a creative work to qualify for copyright protection, it must be original, minimally creative, and fixed in a tangible medium of expression.

Also, many types of works cannot receive copyright protection. Works created by US government officers and employees as part of their jobs are in the public domain.

This rule does not apply to independent contractors for the federal government unless the work is created under a work-made-for-hire agreement (meaning the government owns the creative work and is in the public domain).

State and local government works created by their officers and employees may be in the public domain if dedicated. Each state is different, so check the state and local laws for guidance.

Where to find public domain images?

The following resources provide users with public domain images. Some sites will require that you join or subscribe to the site. Some of the resources mix public domain and copyright protected images. Read the term of service with any website or image you want to use, which can be found under headings like Rights, Permission, or Restrictions. If you decide to use the image, comply with the use requirements. Even if a work falls within the public domain, give credit where credit is due.

Happy picture hunting!


Photo Credit: NASA | JPL-Caltech| GSFC | JAXA | NuSTAR Stares At The Sun | April 2015

 

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

 

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