MEMBER QUESTION

An academic librarian relayed this question from a researcher/author:

"I am in the stage of tracking down photo permissions and have found images originally published by U.S. presses from the late 1800s and early 1900s (1887, 1893) that are now defunct--hence I cannot request photo permissions from them. The images are posted online by historical societies, but I'm not sure if they're in the public domain or not.   I plan to reach out to the society publishing the images on their digital archives, and credit them for using the images, but is there any other factor to consider?"

 

WNYLRC ATTORNEY'S RESPONSE

First, some validation: the faculty member is wise to be considering this issue, since publishing contracts[1] almost always put the responsibility and liability for photo clearances on the author.

In this case, there are several layers of copyright ownership to consider: the original copyright of the photographer, the copyright of the books, and the copyright to any re- publication by which they are being made available (for instance, a digital archive).

Because of the publication dates (1887, 1893), the original copyrights (for the photograph and the original book), are most certainly expired.[2] The only concern would be if the images were somehow used to create a work with a "new" copyright...for instance, if the picture of the long-dead person was enmeshed with a picture of Janelle Monae on a rocket ship to Mars...which isn't the case here.

So, while in the law game there is a rule of "never say never," based on the dates, the images in this question should be free from copyright.  That said, as contemplated by the question, it is almost always a good idea[3] to extend a "courtesy acknowledgement" to a historical society, library or other archival resource that stewarded the image so it could be used for research. 

Even more important when using a digital source, however, is first confirming, and documenting, that the image isn't being taken from a website or repository in violation of any of their "terms of use" conditions.  Written confirmations from the archive, or keeping a screenshot of the "terms of use," image information, and metadata, are all good ways to do this.

Other risks of using old photographs for commercial publications are: the possibility that the image is being used as a trademark, and the possibility that the re-publication could make commercial use of images of deceased "personalities."  These should both be ruled out before publication.

In addition, when using a photo--especially for publication--it is a good idea to confirm that there are no ethical or relational concerns with using certain images.[4]  For these reasons, writing to the historical societies to inquire about images kept in their collections (as the faculty member in this example is doing) is a good idea...just ask for information, not permission.   Checking in with a person who focuses on ethical issues in that particular area of scholarship is wise, too.

 

MEMBER QUESTION

Our archive was part of a regional project to initiate, scan, and make available church records from predominantly African American churches within a city. As part of this project, student/graduate assistants went to the particular churches, scanned the historical records as digital files, and provided those files to [our archive] for public access.

My question is in regards to photographs taken of minors and the restrictions for retention and online display. I would not have selected those particular items for retention, but because I was not on-site during the scanning, I have the files as part of the larger record (church programs, organizational records, committees, etc.). We have signed permissions from the church administration for online access and display of their records. In some cases the photographs are from over 20-40 years ago, in some cases they're much more recent. They're taken at private church events, Sunday school classes/activities, and public events--some as part of photo albums and some as individual files.

I'm struggling with how to treat these photographs and any associated records when I know they display minors. Any advice or direction would be greatly appreciated.

WNYLRC ATTORNEY'S RESPONSE

This question is at the vertex of the law and ethics.  What an institution may be positioned to do with archival images legally might not be what our society demands ethically.  And if the issue impacts real people with real feelings, this conflict can lead to legal claims—regardless of solid footing based on precedent and the law.[1]

When it comes to images of children, who can't legally consent to the use of their images, the ethical issues arising from agency, respect, and self-determination are all the more critical.

The member clearly knows this, and is seeking a direction for assessing how to access, catalog, and use them—if at all. The law is often too blunt an instrument to assess ethical questions, but in this case, I believe the legal steps for assessing the use of such such images can provide a framework for the deeper assessment of the ethical considerations[2] .

Below, I will list the "legal" steps an attorney considers when reviewing a museum or archive's acquisition, but focus on the ethical considerations connected to those factors, especially with regard to use of images of children.

1.  Ownership of the Physical Object

This stage is where an institution looks at the provenance of the object and, if that physical object is to be transferred to the institution, addresses the legal priority of making sure the title is "clear."

Ethical considerations: How did the physical object come into existence?  Was the creator a member of the community being documented, an academic, a journalist, or an "outsider?"  Does it appear that parents or guardians were present?  What was the original purpose of the object?  Does any of that information suggest coercion, exploitation, or invasion of privacy?

Or, as the International Council on Archives puts it in Section 7 of their Code:

Archivists...must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

 

2.  Ownership of the Copyright

This stage is where an institution looks at the original ownership of the copyright of the image, any transfers of those rights, the use of those rights, if the rights have expired or been transferred to the public domain, and if any of those rights are to be transferred to the institution.

Ethical considerations: Who "owns" the rights to the image?  Are the rights financially valuable?  Have they been put to non-academic, commercial use before, or are they likely to be?  Can your institution accept the rights in a way that limits future commercial exploitation of depicted minors?

Or, as the Society of American Archivists puts it in Section VI of their Code of Ethics:

Archivists may place restrictions on access for the protection of privacy or confidentiality of information in the records.

 

3.  Manner of Accession

This stage is where an institution looks at the overall package it is acquiring.  In this case, the member has pointed out that the data collection project may have over-stepped some (formal or informal) boundaries.  Other accession challenges can be donor-imposed conditions, environmental factors, and budget concerns.

Or, as the International Council on Archives puts it in Section 2 of their Code of Ethics:

Archivists should appraise records impartially basing their judgment on a thorough knowledge of their institution’s administrative requirements and acquisitions policies.

...and in Section 5 of that same Code:

Archivists negotiating with transferring officials or owners of records should seek fair decisions based on full consideration – when applicable – the following factors: authority to transfer, donate, or sell; financial arrangements and benefits; plans for processing; copyright and conditions of access. Archivists should keep a permanent record documenting accessions, conservation and all archival work done.

 

4.  Legal Considerations of Content

This stage is where an institution looks for specific concerns caused by the precise content in the materials.  When it comes to pictures of minors, this means assessing if the content is in any way criminal, contains evidence of a crime, if the information suggests they were a ward of the state, if it originated from sealed criminal records, and if the use will in any way be commercial (and thus require permission).

Or, as the Society of American Archives puts it in Section IX of their Code of Ethics:

Archivists must uphold all federal, state, and local laws.

 

5.  Identity of Person(s) Portrayed

This stage is where an institution looks at the depiction of the real person portrayed in the material and assesses if it poses any additional challenges.

Or, as the Society of American Archives puts it in Section VI of their Code of Ethics:

Archivists strive to promote open and equitable access to their services and the records in their care without discrimination or preferential treatment, and in accordance with legal requirements, cultural sensitivities, and institutional policies.

 

6.  Alignment with Mission

An archive or museum will always have a mission—or "charitable purpose"—at its core.  This is how it maintains a tax-exempt status, its charter, and its ability to operate.  Does the contemplated use of the content you are focusing on (the images of children) match up with that mission?  Or it is somehow at odds or unaligned with it?

This consideration warrants a repeat of Section 7 of the International Council on Archives Code of Ethics:

Archivists should take care that corporate and personal privacy as well as national security are protected without destroying information, especially in the case of electronic records where updating and erasure are common practice. They must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

 

7.  Alignment with Collection Purpose

Just as an archive or museum will always have a mission—or "charitable purpose"—at its core, so will a particular collection have a description that sets out its scope, methods, and purpose.  Does the contemplated use of the content you are focusing on (the images of children) match up with that description?  Or it is somehow extraneous or not quite consistent with it?  If sensitive material is not squarely within the scope of the collection, it shouldn't be there at all.

Or, as the Society of American Archives puts it in Section III of their Code of Ethics:

Archivists should exercise professional judgment in acquiring, appraising, and processing historical materials. They should not allow personal beliefs or perspectives to affect their decisions.

 

That's great...but what to do?!?

When faced with a sensitive decision like the one posed by the member, a subject-focused analysis based on the above factors is the right way to move ahead, in one of three directions:

• If there is a decision to accession the materials and facilitate access, a written protocol for handling the sensitivities should be made part of the policies of the collection.
• If there is a decision to accession but limit access (something archival values generally counsel against) there should be a clear path through the restrictions and a well-documented justification for the limitations.
• If there is a decision to decline accession, the basis of the decision should be documented in light of the factors impacting the decision.

In this particular case, any of the three above-listed options might be appropriate.  From the brief description provided by the member, it sounds like the photos were joyful documentation of a community by its own members—not exploitive or rooted in dubious practices. 

But even under a "best case scenario"[3] like the one provided by the member, it is appropriate to develop a checklist based on the mission of the institution, and the goals of the collection, to be assured any archival images with minors:

1) will not be subject to commercial exploitation by the institution or a third party accessing the collection (unless there is properly executed permission allowing such use);

2) were not created in a manner inconsistent with the mission, values, and ethics of your institution; or if they were, the collection parameters address those concerns;

3) are included in a manner consistent with the purpose of the collection; and

4) there is a process[4] for any individual or relative to request removal of an image of a depicted minor.  Since such a request would only come after there was a determination that the image was consistent with the values of the institution and fit within the scope of the collection, any evaluation of such a request should be made based on the reasons for the request.

 

The good news is, the same documentation that shows careful assessment of the ethical factors will help you with any future legal concerns.

And finally, there is one more option for this particular scenario, which is to ask each church to include in their weekly bulletin or routine outreach:

Our church has been selected for inclusion in the ABC institution's online archives. As part of this work, we have provided numerous photos of our events over the years, which include pictures of many of our congregants when they were children. If you have any concerns with your childhood image being included in such a collection, please alert us.  Otherwise, please know that our community records are being preserved for the future!

That way, the church as the original provider of the records can "claw back" any photos that a person might object to, and your archive will have another step in its own records to show it did everything it could to respect people's agency and privacy.

Thank you for a thoughtful question.

 

MEMBER QUESTION

Is it considered fair use for a student to reproduce a copyrighted photograph for public display in an academic institution having cited the original published source but not having sought and received express permission from the copyright holder? The image is reproduced in its entirety with overplayed text added by the student. The posters are the product of an academic exercise. It has been proposed to display them for a period of 2 months in an area open to the public.

WNYLRC ATTORNEY'S RESPONSE

You, reader, will never know my answer to this question.

That’s because to truly answer it, I had to contact the member and get some more information.  The information I received, and the answer I gave in return, were so specific, the content was no longer suitable for a general-audience response.[1]

It had become legal advice, not just “guidance,” or “commentary,” or “analysis.”  It was confidential, tailored to one entity, and protected by attorney-client privilege.

This is the challenge with fair use questions: they turn on numerous precise details.

That said, I can say that the bare-bones scenario above gives a few reasons to be cautious.  The use of the entire work, and the display in a public area, are red flags.

But I also want to caution you about too much caution.  Both those risk factors: use of the entire work, public display—could be easily balanced by an exercise in compare-and-contrast, substantive criticism, or in-depth analysis.

This is why an educational institution should always use a “fair use checklist”[2] to address questions of fair use.  An educational institution that uses a checklist has a good chance of determining that a use is “fair,” and while doing so, also creates documentation showing that their conclusion—even if later ruled to be erroneous—was in “good faith.”  This exercise can limit damages, later.

The most recent case law involving use of a photograph in an academic setting, Reiner v. Nishimori,[3] did result in a finding of fair use, and is an instructive example.  In that case, students used the plaintiff’s copyright-protected stock photograph to practice making advertisements.

Here is the court’s analysis of the case, using the fair use “four factor” test:

1. The first factor is “purpose and character of the use.”  For that factor, the court held that because the photo was not being used as instructional material, but rather as raw content for the generation of mock advertisements, the factor was in favor of fair use.
2. The second factor, however, “the nature of the copyrighted work,” was found to weigh slightly against fair use, since the original work was “creative,” and the student use was also “creative.”[4]
3. The third factor, “the amount of work used,” was against fair use because the students used entire photograph.
4. The fourth factor, “the effect on the market for the copyrighted work,” was found to support a fair use claim.  Basically, in this precise instance, it was found by the court that no one who would have purchased or licensed the original would choose not to do so based on the students’ use.

That’s Reiner v. Nishimori, where fair use carried the day.  But with a few tweaks of the facts, it could have had a different outcome.

And that’s while you may never know the real answer to this question.