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Copyright Question
Hello,
Very simple question here.
Say someone writes a book that features unaltered historical pictures in it that exceed the copyright laws of the United States (pre-1923), are those picture fair game? In other words, could I scan those images out of the book and use them for whatever I wish? I would think yes, correct? How would someone know that I obtained that photo from their book (unless they altered the picture), and not some other source (since the photo is in the pulblic domain)?
-Aaron
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13 Replies
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Aaron,
As ususal, simple questions don’t always have simple answers…
First, this is a very common issue encountered during the making of historical docos. For example, many filmmakers attempt to create docos about long-dead artists, and they come up against similar issues that wind up making them abandon their ideas. They all ask, “why can’t I just copy the art right out of museum guide, the art was donated and it’s got to be out of copyright by now?” You’re barking up that same tree, and the answer is, the artwork or photos may be in the public domain, but book publishers have rights too, and they often can charge you whatever they want.
Moreover, even if the book is in the public domain now, a broadcaster’s legal dept. or the people at an E&O insurance broker might vet your doco for such things should you be lucky enough to get them interested in licensing the doco for broadcast or distribution. And, any pro vetting a doco would be certain to question a photo obviously copied from a book, and you would then be required to furnish them with proof of clearance, which might take you a long, long time and lots of dough to acquire.
So, if the pix are indeed in the public domain, there must be “legit” sources for the same photo, and you should at least do the research now and find out where the pix are archived and what they will cost. Then, go ahead and use the pix from the book as temporary placeholders while you cut the story, but don’t try to pawn them off as pix for which you have legal clearance, unless you actually do secure a legitimate clearance of some sort.
Later, If you get an interested distributor or broadcaster, let them know that your license needs to cover the cost securing the photos and doing the post to cut them in. That’s the right way do it in any case, and how a typical professional would handle it.
David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los AngelesPOST-PRODUCTION WITHOUT THE USUAL INSANITY ™
A forum host of Creative COW’s Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.
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Ok, so let me ask you this. Say I pay a historical society to reproduce a public domain image they have in their archive. And let’s say they provide me with a high-res scan. Once that scan is in my posession, there is no limit to how many times I can use it and what I can use if for, correct? I could even sell that high-res file to others if I wanted to, correct? Public domain means all bets are off. The only thing I need to pay for is access to the image, correct?
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Not necessarily. You would have to look at what terms and conditions are attached to the scan. In effect, the historical society may not own copyright of the photo, but they may be able to control your use of it and access to it.
Arnie
Post production is not an afterthought!
https://www.arniepix.com/ -
Me and a partner produced a documentary in 1992 (Laura Clay: Voice of Change) that aired regionally on PBS.
Even though she died in 1936 and most of the photos we used (there were hundreds) in the documentary came from historical societies, special University library collections, the Library of Congress and the National Archives, we still had to pay a usage fee for many of them (it wasn’t much, something like $35 per photo), and we had to pay for 8×10 reprints (there was no such thing as digital back then). I think we ended up paying something like $5000 for rights and reprints, and we also had to pay a couple thousand to use what was called a manipulator (this was before After Effects too) to create video moves on the images. So all in all we paid about $7000 to use a couple hundred photos.
All the archives we pulled from were very accomodating when we presented them with the idea and asked to use certain images. Nobody asked what we thought was an unreasonable amount of money for their use.
But…I don’t think ethically, legally or otherwise we then had the right to take those images and use them for anything else that we saw fit.
Chris Blair
Magnetic Image, Inc.
Evansville, IN
http://www.videomi.com -
[Aaron Cadieux] “let’s say they provide me with a high-res scan. Once that scan is in my posession, there is no limit to how many times I can use it and what I can use if for, correct? I could even sell that high-res file to others if I wanted to, correct? Public domain means all bets are off. The only thing I need to pay for is access to the image, correct? “
Aaron,
That’s a bit of a non-sequitur (i.e. does not follow). One right does not necessarily beget another.
Typically, most licenses specify “one use only,” and they typically specify a title. So, if you make a doco entitled Gone With the Wind, your rights extend no farther than that film. If you sell stock footage from that film for inclusion in the films of others, you must specify that non-owned material is not to be used because you have no authority to resell or relicense.
I often license material from the BBC Motion Gallery for historical docos and receive detailed logs specifically warning us off from using certain shots or stills that may be in a reel, but are nonetheless unavailable for relicense.
While you might get away with reselling or relicensing, or be lucky enough that someone writes you a contract full of loopholes, I’d advise that you’d best consider your reputation before heading in that direction. The documentary world is quite small, and you might decide to make another film.
David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los AngelesPOST-PRODUCTION WITHOUT THE USUAL INSANITY ™
A forum host of Creative COW’s Apple Final Cut Pro, Business & Marketing, and Indie Film & Documentary forums.
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Let me clarify a little. I am actually asking these questions on behalf of my employer, who is producing a documentary that requires the use of public domain images. I told them I would research the topic a little for them. So please don’t think I’m actually going to be trying to do any of the things I’ve talked about in this thread.
But here’s my issue with the whole thing. I can fully understand an institution charging a fee for access and/or the reproduction of a PUBLIC DOMAIN image in their archive. But how can they limit you on “uses” of that image when they DON’T OWN THE RIGHTS to it? They simply are lucky enough to have it in their possession. That would be like me owning a one-of-a-kind Honus Wagner baseball card and then claiming to “own the rights” to that image. How would an institution have a legal leg to stand on if a filmmaker chose to “do what they wish, as much as they wish” with that image once they pay for access and/or reproduction? Especially if there is no signing of a contract involved.
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Aaron, I think you can boil it down to this…
The rights to the “image” might be in the public domain… but what you are paying the institution for is the right to access the image, and the rights to their copy of it. Ergo, they have the freedom and right to exercise control over what they give you, if they choose.
Now, if you were to procure rights to an image from, say, a private museum that gave fairly strict limitations to it’s useage, you’d be bound by that. Then, say later on, you come across a different source (let’s say the estate of the original now-expired rights-holder hands you their own copy to use free and clear with no restrictions), well then you’d be in the clear to do with it as you like… as LONG as the actual image you are using actually came from the unrestricted source. Even if pixel-for-pixel you can’t tell on screen which is which, one of them is clear and the other is restricted.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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I’ve decided to go to law school. I’m going to specialize in copyright law then charge all of you $400/hr.
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I dunno… one of my good friends is a copyright and intellectual property attorney. He seems to have zero fun at work. Money, but no fun.
T2
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Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com
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A valid point…so maybe I’ll work an hour a day then spend the rest of my time at the beach or on the COW.
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