Expert: Kacey Cahill - 11/19/2008

Question
Hi,

As a freelance designer, I've been using vintage images (such as found on the Library of Congress website, http://lcweb2.loc.gov/pp/pphome.html) in my brochures and other publications but am always careful to honor any copyright restrictions. The syntax at the LOC, for instance, many times will read: "RIGHTS INFORMATION:  No known restrictions on publication."

Now, Google and Life Magazine are teaming up to make many of Life's old photographs and other images available through Google's Image Search. (Check it out at http://images.google.com/hosted/life)

I can't find any specific copyright info on that site. I have always thought that anything fifty years old or older can be used without even asking permission. Am I under a misapprehension?

I'm currently designing a series of workbooks for a local school (and maybe a text-book distributor). May I / How should I go about using the older Life images in published works without stepping on their toes?

Also, I myself have access to some antique images and old book plates. Can I scan them and sell them without fear of copyright infringement? Can I sue someone else for  infringing my copyright if they use those images without my say-so?

And finally (just curious) is US copyright law there to protect the creator of the work, or the owner of the work?

Thanks for the help,
Dale

Answer
Dale.  You have raised many points.  I will try to answer them from the general to the secific.

First Copyright Law.  

A copyright attaches in an original work of authorship (including pictures) when that work is created (and placed in a tangible means of expression).  It exists to protect the copyright owner.  The owner of the product and the owner of the copyright in the product are often different people.  When you buy a book, you own the book, but not the copyright.  You can read the book, but not record it and sell the recording without permission from the owner (whether that is the actual writer or the publishing company or somebody like Micheal Jackson).  Whoever created those images, owns the copyright for the length of time the copyright lasts unless that person transferred them to somebody else.

I am assuming these images are pre-1978.  If that is the case then the following general information applies (as you will see, the key is determining when the work was published):

All works published in the United States before 1923 are in the public domain (free to use).

If the work was published between 1923 and 1963, check with the Copyright Office and see if the copyright was renewed  -- if not,  the work is within public domain and you may use it (you can call the copyright office in DC).

Otherwise, works published after 1923 but before 1978 are protected for 95 years from the date of publication.

Works originally created before January 1, 1978, but not published or registered by that date -- life of the author plus 70 years, but in no case expiring before December 31, 2002. If the work was published before December 31, 2002, the term will not expire before December 31, 2047.

For your reference, for works originally created on or after January 1, 1978, protection lasts for the life of the author plus 70 years. For joint works, it is 70 years after the last surviving author's death. For anonymous and pseudonymous works and works made for hire, it is 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.

Based on what you have said, I think you need to think very carefully about the copyright issue.  If it was created by somebody else, and you are copying it, there is a copyright problem unless the protection has expired or you have permission.  In order to determine that, you need to find out when it was published.  If the images are old Time Life images, contact Time Life and ask permission or find out what their terms are in general.

There is a concept of fair use, which applies in some circumstances that would otherwise constitute a copyright violation, but it is less likely to apply when the copier is gaining commercially.

As for the Google Time Life images, contact either one and find out the terms under which you can use them. Even if otherwise in the public domain, don't copy from them without their permission (be careful of compilations).

As for your last issue, if you create an original work of art, then you also have a copyright in that work and can prevent others from copying it, but it needs to be your origin work.

I hope this is somewhat helpful.  

Please know this advice is being provided for educational purposes only and if you need specific legal advice, you should consult an attorney.

Kind Regards,

Kacey Cahill