The Visual Resources Center provides and facilitates access to images that depict art and other forms of creative expression. We also assist our faculty members and students with the making and editing digital images that are themselves creative artwork. These images and artworks are generally both “original works of authorship,” which are automatically protected by copyright from the moment of their creation. This protection grants a work’s creator the exclusive right to distribute, reproduce, make derivative copies, and display or perform the work publicly. The majority of images in the VRC's collections and other online sources are protected by copyright.
This protection, available to both published and unpublished works (including images), lasts until the copyright expires and the work passes into the public domain. Works in the public domain are not protected by copyright, which means they may be used freely by anyone. Aside from the expiration of copyright, original works of authorship can be in the public domain if a) the creator failed to satisfy statutory formalities to maintain the copyright, b) the creator of the work is the U.S. Government, or c) the creator has formally relinquished his or her rights under the law. Facts are not covered by copyright.
A complication regarding images of art and architecture is that they frequently involve two layers of copyright protection: that of the owner of the underlying work (e.g., a sculpture), and that of the owner of the image depicting that underlying work (e.g., the photograph of that sculpture). While the underlying work may be in the public domain, a photograph of it may simultaneously be protected by copyright.
In the US, any creative works (including images depicting creative works) published before 1923 are in the public domain. The status of works and images created 1923 or after is not always straightforward. Determining whether a work or image is copyrighted, by whom, and whether it’s been published can be sometimes be difficult, but it is important not to assume that an image posted online is free to use for any purpose.
Fair Use and "copyleft" licensing provide some exceptions provide exceptions to the exclusive right of copyright owners to reproduce or to authorize others to reproduce their work.
Sections 107 through 118 of the US Copyright law provide exceptions to the exclusive right of copyright owners to reproduce or to authorize others to reproduce their work. One of these addresses “fair use.” Section 107 contains a list of circumstances in which reproducing a copyrighted work may be “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.
Section 107 also sets out four factors to be considered by courts of law in determining whether the fair use exemption applies:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between fair use and infringement can be difficult to define and is frequently a matter of informed judgment. The law stipulates no exact number or percentage of copyrighted images from a particular source that may safely be copied without permission. Citing or attributing sources does not substitute for permissions from copyright holders. Educational use does not grant the right to unlimited reproduction of copyrighted materials – the courts examine all four fair use factors. In the reproduction of copyrighted materials for educational use, the effect on the market or the potential market may be especially important to consider. Legal counsel at CU has recommended against digitizing images that are a) available commercially in digital form at a reasonable cost, or b) slides purchased from vendors or museums without obtaining permission first. Access to commercial images must be limited to the CU community (e.g., classroom display and protected websites only), and it’s generally considered a best practice/good faith effort to keep fair use images limited to the CU community as well.
“Copyleft” is a more flexible alternative to the “all rights reserved” status that copyright law automatically creates. It is a “some rights reserved” licensing approach that falls somewhere between public domain and absolute copyright protection, in which a creator can choose to surrender some but not all of his or her exclusive rights. For example, a license might allow others to reproduce and distribute a work, as long as the creator is credited.
Creative Commons (CC) is a non-profit organization that provides creators with a set of these kinds of copyleft licenses and tools that they can easily assign to their works free of charge. They also offer a convenient portal to search services provided by other organizations that help users find works with Creative Commons licenses. Note that Creative Commons includes the following caveat on its search site: “CC has no control over the results that are returned. Do not assume that the results displayed in this search portal are under a CC license. You should always follow the link to verify that the work is actually under a CC license and to verify the requirements of that license, including the proper form of attribution. Since there is no registration to use a CC license, CC has no way to determine what has and hasn't been placed under the terms of a CC license. If you are in doubt you should contact the copyright holder directly, or try to contact the site where you found the content.”
- The US government’s Copyright Office provides a basic overview of copyright and fair use.
- Artists, authors, and scholars who wish to understand their rights as creators should know about the primer titled “So What … About Copyright?” [PDF]. From Public Knowledge, this set of essays provides creators with an overview of copyright law and current policy issues that may affect them and their work.”
- An important resource for educators is the Visual Resources Association’s Statement on the Fair Use of Images for Teaching, Research, and Study [PDF]. It describes six uses of copyrighted still images that VRA believes fall within fair use. The six uses are: 1) preservation; 2) use of images in teaching; 3) use of images on course websites and in other online study materials; 4) adaptations of images for teaching and classroom work by students; 5) sharing images among educational and cultural institutions to facilitate teaching and study; and 6) reproduction of images in theses and dissertations.
- CAA’s Code of Best Practices in Fair Use in the Visual Arts [PDF], published in 2015, outlines principles for visual-arts professionals regarding the fair use of copyrighted materials. It explores the ways that fair use can be applied in scholarship, teaching, museums, archives, and in the creation of art, offering a set of best practices in the areas of analytic writing, teaching about art, making art, museum uses, and online access to archival and special collections.
- The University of Colorado Boulder's Libraries has created its own copyright information site. It provides an overview of copyright facts, and includes sections on fair use, copyrighting your own work, obtaining copyright permission, and CU Boulder's copyright violations procedures.
- Stanford University Libraries offers a comprehensive overview of copyright law and fair use guidelines. It includes links to US government web pages, current legislation addressing these issues, and critical commentary on current law. The pages on fair use are of particular interest to educators and students.
- Creative Commons (CC) provides creators with a set of copyleft licenses and tools, as well as a way for others to find works with CC licenses.
- Cornell University maintains a user-friendly chart for determining a work’s public domain status.
- The CU-Digital Library has a page on Copyright Policies for Collection Managers at the University of Colorado.
Please note that this site is not intended to provide legal advice about copyright.
This content is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. Visual Resources Center, Department of Art and Art History, University of Colorado Boulder. https://www.colorado.edu/artandarthistory/vrc