We can’t stress enough the importance of obtaining permission if you’re planning to use another person’s intellectual property – whether that’s text, images or any other work. This applies whoever you are, even if you’re an academic. If you’d like someone else to do the complicated (and sometimes infuriating) work of chasing up rights holders and obtaining permission for you, we offer a fully comprehensive professional text and image permissions service. In this blog, though, we’ll outline the things to consider when populating your own books and articles with images and quotations. Sometimes it’s possible to do this without spending money, because lots of academic writing will, in fact, be protected from copyright issues.
Fair Dealing and Fair Use
It’s pretty straightforward to quote third-party material for criticism or review – that is, as long as you cite your sources properly. Such usage is categorised as ‘fair dealing’ (in the UK) or ‘fair use’ (in the USA). The technical definitions of fair ‘dealing’ and ‘use’ are slightly different – the former describes an exception to copyright law (as described here), the latter is technically a defence (as explained here). They amount to the same thing, however: if you’re writing an academic text, you should safely be able to quote other people and criticise their work.
Sometimes, you’ll want to ornament your work, using poetry, music lyrics, or a quotation you find particularly stirring – in an epigraph, for instance. In these situations, you must exercise greater care. These works aren’t necessarily covered by fair use or dealing, and this becomes even more of a difficulty when an academic publication asks you to sign away your intellectual property – something we’re asked to do all the time. We don’t have the rights to give away someone else’s work, so this can be a bit of a thorny issue. Your editor should be able to advise, however, if you aren’t clear on a particular usage. That leaves images.
Using an image for a lecture, presentation, or course hand-out probably shouldn’t land you in any trouble. You can technically ‘quote’ them in these circumstances. It’s harder to make the case for fair dealing or use, though, when reprinting an image in a book or an article. The world of image rights is fraught, as the celebrated American photographer Carol M. Highsmith found.
The Cautionary Tale of Carol M. Highsmith
For much of her career, Highsmith has spent her life travelling and photographing America. Her subjects are many and varied, and include matters of science and technology, from the Perot Museum of Nature and Science in Dallas, to biodiverse living roofs, and the country’s staggering array of wildlife. Her library of images is a wonderful resource for any scientist, and The New York Times, among others, has paid rights-management websites such as Getty and Alamy as much as $5,000 per image to use examples of her work.
Then, one day in December 2015, Highsmith got a letter from a firm hired by Getty. She’d been illegally downloading and using a protected image on her website. But the image was hers. Getty, nevertheless, wanted payment. Highsmith, as you might imagine, was incensed. She hadn’t surrendered her rights to Getty in the first place, so what right had they to demand money for her work? In fact, you and I can use Highsmith’s work – that’s more than 100,000 images of American life – entirely for free. From 1992, she began to donate her images to the Library of Congress, which described her gift as ‘one of the greatest acts of generosity’ in its history. You can browse the catalogue and download whatever takes your fancy.
The case ended up in court, with Highsmith pointing out that 18,755 of her photos had been illegally claimed by Getty. She sought $1 billion in damages. Getty’s slippery excuse was that they were charging for ‘distribution’, not ‘use’, of the material. Highsmith, they argued, had surrendered her rights when she gave them to the nation. And the court agreed. Highsmith lost the case.
Creative Commons and Public Domain
Companies such as Getty, Alamy and Shutterstock make it easy, if expensive, to find and pay for images. As Highsmith’s case makes clear, images offered by those sites can sometimes be sourced from elsewhere – sometimes for free, and almost always for less money. Still, using these services is one way of getting the necessary rights, especially when it isn’t always clear who the copyright holder is.
If you’re on the look-out for some free images for the front of your lab report, keep an eye open for the terms ‘CC’ (Creative Commons) and ‘PD’ (Public Domain). As long as you acknowledge your sources, these are free to use. Copyright also normally expires 70 years after the creator’s death. But this can be extended in some cases, so it’s better to be cautious and seek confirmation in these cases. When you’re looking for free-to-use images, the Library of Congress, as we’ve already seen, is a fine place to begin. They have a substantial collection of free-to-use, Public Domain images. Another source is Wikicommons. Wellcome Images is most useful for historic or contemporary medical matters. If an image is freely available, then you don’t need to ask permission from its creator. You probably shouldn’t, in fact. If a creator attempts to deny you permission to use something you have a perfect right to use, your friendly gesture might lead to an awkward conversation.
Social media posts can also be a source of images or quotable text, but they should be approached with more caution. First, it might be unethical to use them. And, although social media posts are technically in the public domain, there are certain etiquettes to observe with regard to privacy. Second, and more seriously, if the original poster has themselves infringed copyright or, for instance, used someone else’s private details or the personal details of children, you could still land yourself in trouble by using the offending material.
It’s also worth keeping in mind that rights holders aren’t all out to make money. Highsmith is a particularly generous example. But many people are happy to let you use the materials they own with little more than an acknowledgement.
Searching for Image Rights For Yourself
If you decide to search for image rights yourself, forgoing the easy-but-expensive route of professional rights management services, you first have to locate the rights holder. Sometimes this is clear, from a photographer’s own website, for example, or from a citation in a textbook. Internet searches can also bring up many useful leads. Google’s image search is particularly useful when it comes to searching for properly cited versions of unauthorised and uncredited images used in blog posts and social media posts.
When you’ve found the rights holder, you next need to contact them. If you feel comfortable doing so, you might phone them up – it’s harder to say ‘no’ when you can hear another human voice, and one that clearly means you no harm. Failing that, you could email them, if you prefer, and publishers are often happy to share email templates with you.
Whether the rightsholder is a library, individual, company or museum, they might ask for reimbursement and/or other terms. They often simply want a ‘thank you’ and credit in your work, especially if you clearly aren’t planning on making a profit. This applies even to seemingly faceless corporations, whose offices are generally populated by kind and helpful people. The opposite is clearly also true, with rightsholders demanding unrealistic sums – sometimes they’ll demand thousands of dollars and won’t even provide you with a high-resolution scan or copy. Although most rights holders will recognise a scientist as someone who isn’t flush with money, some might smell research grant money. And this can influence how much they ask for. If you can assure them that you aren’t out to make money, however, they will be more likely to waive their fees.
If You Can’t Trace the Copyright Holder
Sometimes you won’t be able to trace the copyright holder. Sometimes they’ll have died, or the company holding the rights will have dissolved, requiring more detective work. If all your efforts fail, you might still be able to claim these images as ‘orphans’ (explained here). Using an orphaned image still attracts a fee, but it’s far less than a rights company would charge. And if you’ve made every possible effort to obtain the necessary permissions, you might talk to your editor about still using the material in question, adding a disclaimer in your acknowledgements reading:
Every effort has been made to identify all copyright holders and to obtain their permission for the use of any copyright material. I would be grateful to be notified of any corrections that should be incorporated in future reprints or editions of this book.
If the rightsholder is still alive and well, and simply isn’t responding, however, there is little you can do – you may have to abandon your image or epigraph.
If you head over to an image rights company, you’ll notice that they’ll offer different licences – specific terms on which you’re allowed to use a given image. They’ll each have different costs associated with them. So, if you want a low-res picture of a test tube for a personal blog, that won’t cost you nearly as much as a high-res version of the same thing going into a textbook. And particularly if you’re writing a trade book, you’ll probably hear the phrase ‘all territories, all languages’, along with ‘in perpetuity’. These are the ideal copyright terms, giving you blanket permission to use an image in your work. But these are terms that can terrify some rights holders. It’s often better, at first, to soften the language and ask something like ‘if my book is translated into another language, is it still OK to use your image?’ If the rightsholder is happy with that, a written agreement can contain those uncompromising terms: ‘all territories, all languages, and in perpetuity’.
Finally, you’ll need to know how your book or article will be circulated, sometimes even how many copies are being printed – information your publisher should be able to provide. And, if your book has a relatively low print-run – if it’s a research monograph destined for a library market, for example, make this clear, because it’ll probably reduce the cost. It’s vital that you get this information right when asked for it, and be honest, especially if you, your agent or your publisher want to sell your own rights in the future (for translation, for instance or distribution on another continent). Taking the time to get your copyright permissions in order early on in a project can save you lots of headaches down the line.