working with public domain images, part 1


We’ve been asked how to tell if an artwork (a painting, for example) or graphic design (such as a vintage advertisement) is in the public domain. There can be many reasons you might want to use existing imagery that’s not your own when creating your art and the public domain is an exciting treasure trove of inspirational material that is free for all of us to reinterpret (i.e. create “derivatives”). Perhaps you have a hankering to recreate a 17th century Spanish still life as a limited edition screen print. Maybe you want to use scans of vintage textile patterns as part of your mixed media collage. Or you might have your eye on a photograph you’d like to use as a backdrop for a hand-lettered quotation. For all these reasons and many others, it can be very helpful to know how to determine whether the image you’d like to use is in the public domain.

While sometimes the answer might be obvious (e.g. you have your own first-hand reference for that Spanish still life, snapped or sketched while you were visiting the Prado last summer), sometimes it’s a little murkier (e.g. you discovered the painting in an online museum catalog and that copyright-protected reproduction is the only source material you have access to). We’ll help you sort through these nuances by looking at several different sources of public domain material and, where it’s not so obvious, giving you some tips for assessing whether your use is kosher. This week, we outline the public domain sources with the clearest boundaries. {Please note that we’re confining our discussion to U.S. copyright law. In future posts, we hope to address some of the differences when determining copyright status in other countries.}

Explicit dedication to the public domain
Let’s start with the very obvious. A lot of images are affirmatively offered free of copyright restriction. These are images that would otherwise be under copyright but the copyright holder has waived her rights and dedicated the image to the public. This category includes images offered under “Creative Commons” licenses that authorize use without limitation. (We discussed Creative Commons licenses in a previous post.)

Images that lack enough original content to be copyrightable
There’s an originality requirement that an image must meet to be copyright eligible. The U.S. Copyright office has a list (see paragraph 313.4) of “works that do not satisfy the originality requirement.” This includes familiar symbols and designs such as musical notes, currency symbols, arrows and other directional signals, common representational symbols such as a spade, heart or diamond, common patterns such as the checkerboard, polka dot, chevron, or houndstooth, as well as the peace sign, gender signs, crosses, stars, crescents, Greek and Roman columns.

Likewise a photograph or scan that is a mere duplication of the original image will lack sufficient creativity to be afforded a separate copyright from the underlying image. Keep this in mind because it gets at one of the important nuances that we'll discuss in next week's post.

Images that were never under copyright
Remember, the U.S. didn’t have a copyright law until 1790. And in the beginning, that just covered printed materials like books and maps and charts. Photographs got coverage in 1865. Paintings didn’t make the cut until 1870. So think of all the works out there in the world that are public domain because they were made in a medium that didn’t get protection at the time.

Images that were once under copyright but are no longer
Then, of course, there are all the images that once were, but no longer are, under copyright. For anyone who read our earlier post about quick and easy public domain quotations, the same date considerations apply to images: anything first published in the United States before 1923 is no longer in copyright in the U.S.  (As with quotations, many images published after 1923 may also be in the public domain. For instance, the copyright may not have been renewed. These cases require some sleuthing in the copyright registry, which we'll get into in later posts.)

So, for this class of images, the first step to determining the U.S. copyright status is figuring out when an image was first published because the copyright term begins to run once the image has been published. What constitutes “publication”? The general rule is that publication of an image occurs when it’s made available to members of the public at large without regard to who they are or what they propose to do with it.

Let's be honest: that's not a super helpful definition. And there's some ambiguity (in the form of court decisions) about how to interpret it. For example, offering a painting for sale in a gallery open to the public has been found to be publication, but merely showing it in such a gallery is not necessarily publication.

So what can we all say with certainty is publication? Reproducing a painting or photograph in a newspaper or magazine is publication. Selling postcards or print reproductions of an image is publication. As a practical matter, the most common way to figure out if an image has been published is to find it in a book, catalog, magazine or other traditionally published medium. This class of printed materials will ordinarily state a print date and distribution to the public ordinarily constitutes publishing.

For this reason, a lot of the images you’ll find on the Internet billed as public domain are scans from books and magazines published in the U.S. before 1923. These images can be used without limitation and there are a lot of them. There are many great websites that are dedicated to collecting and freely sharing such images. One of our favorites is Graphics Fairy, where we sourced the crazy fabulous frame you see above in today’s blog graphic! (When using sites such as these, remember that you must still use your good judgment and awareness of copyright rules, as the sites’ owners typically disclaim any liability for your use.)

Alternatively, source your own! Your public library, favorite used bookstore, thrift stores and flea markets also likely contain many books published before 1923 (which you can verify by looking at the book’s copyright page), filled with wonderful public domain photos, illustrations, and designs.

In our next post we’ll talk about what happens to the copyright status of public domain images when they’re turned into derivative works. This opens up some interesting additional public domain territory, so be sure to come back for our next installment!

Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.