A researcher or writer is responsible to exercise due diligence to document as much as possible about an image, including:
Someone created every image. Images created before 1923 are "public domain," but reproductions of those images may be under copyright. Copyright means that a person or organizations retains an exclusive right to make copies for some period of time. Proper identification and citation protects against plagiarism, and following Fair Use guidelines protects against copyright infringement.
Please note that this guide is advice on best practices and considerations in documenting and citing images, and does not constitute legal advice on obtaining permissions.
"Fayerweather Island Lighthouse" (Black Rock Harbor, Bridgeport, CT) by borazlos is licensed under CC BY-NC-SA 2.0
Fair use (117 U.S.C. §107) is a doctrine in the copyright law of the United States (U.S. Code §17) that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. These uses are usually academic and educational.
Fair Use is never closely defined in the law. Instead the law prescribes analysis of four factors:
|FACTOR||WEIGHING TOWARDS FAIR USE|
|Purpose of use||
|Nature or type of work||
It is necessary to weigh all four factors to decide whether a fair use exemption seems to apply to a proposed reuse. For this reason, using images that are openly available for public use is often the best practice.
To help support a fair use case for an image:
Use lower resolution or thumbnail versions where possible;
Place the image in a new context or use it for a new purpose; and
Use only the parts of the image needed for the purpose.
Additional special considerations for using images:
Photographs of people may involve rights of privacy or publicity, state and/or federal laws which limit the use of a person's likeness. Consider:
Using photographs of people taken in larger public scenes;
Avoiding photographs of famous people, or people engaging in private activities.
Photographs of works of art may involve the rights of the work's creator/copyright holder. Consider using photographs of 2-D works in the public domain-- these are usually not protected by copyright.
Buildings designed after Dec. 1, 1990 are copyrighted. Consider using photographs taken from a public place.
The Visual Resources Association (VRA) in its Statement on the Fair Use of Images for Teaching, Research and Study (.pdf, 2011) notes that use of images in scholarship is fundamental to the advancement of collective knowledge. The VRA suggests that researchers are best positioned to assert fair use if:
Do not include images within a bibliography of "works cited." It is common, instead, to create a separate list of images (or figures) and their source, such as photographer (even if it's you) or collection. It may be useful to also include location, e.g., museum, geographic reference, address, etc.