Photographs and Graphics

Photographs and graphics are included in the category of pictorial, sculptural, and graphic works in the U.S. Copyright Act. The term "photograph" is not defined in the Copyright Act, but a common definition is "an image, especially a positive print, recorded by a camera and reproduced on a photosensitive surface."[1] Images may be embodied in actual photographs, glass plates, or negatives, or as digital copies. The format of an image is irrelevant; it is the underlying photograph that is the copyrighted work. Libraries and archives have collected photographs since the earliest days of photography, and have been the recipients of photographs and even whole photographic collections. Often the photographer of these works is unknown; it is unclear whether the works were ever published; and the date of the image can be ascertained only by guesswork based on the subject's clothing, automobiles in the picture, and so forth.

Librarians are often asked to duplicate images for users, and libraries seek to make some of these photographic collections available on the web. Images of public domain works of art are crucial to faculty members from a range of disciplinesfrom art history to law, from medicine to anthropology. Establishing whether an image was ever published is crucial in determining whether the work is protected by copyright. Photographers are often unknown, and libraries are repeatedly asked to reproduce copies of images for scholars and researchers. Photographers seldom put copyright notice on their works, and they do not often register them. Moreover, the copyright information may have been removed by the owner of the copy of a photograph later donated to a library, leaving the library without any way to identify the photographer and copyright information. As a result, there are more orphans in photographic works than in other types of works.

Although there are exceptions to lack of notice on photographs and registration, lack of information about the photographer creates problems for libraries. Section io8(i) of the Copyright Act details the exclusions from the library exceptions, which include pictorial works. When a library may reproduce and distribute images includes: (1) to preserve an unpublished work under section 108(b); (2) to replace a lost, stolen, damaged, or deteriorating image under section 108(c); (3) for scholarship, research, or preservation under section 108(h); or (4) when images are included in materials, such as journal articles that are reproduced for a user under sections 108(d) and (e).

Two other issues relating to photographs are important: the right of privacy and the right of publicity. Individuals may object to having their photographs displayed in libraries, and if they are private citizens, it is possible that they may be able to complain about a library's use of their likeness for such display. Because of this, many libraries try to use a disclaimer and then seek permission of the individuals depicted, even though the copyright belongs to the photographer and not to the subject of the photograph. By contrast, the right of publicity typically belongs to famous individuals, who can control the use of their images for commercial purposes. However, the Internet has had a tremendous effect on these rights, with fan sites proliferating daily.

Questions in this chapter pertain to copyright ownership, disclaimers for posting photographs on the web, granting access to photographic collections to scholars, the display of images in the academic classroom, the use of images in scholarly conferences and in public presentation, and reproduction and distribution of photographic images. Although outside the purview of copyright law, questions of privacy and permission are raised as they pertain to the use of a person's likeness in library promotional materials and on the web.

Chapter 7, "Digitization," and chapter 11, "Preservation and Archiving," also discuss images.

  • [1] The Free Dictionary, at
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