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?"
First, some validation: the faculty member is wise to be considering this issue, since publishing contracts 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. 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 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.
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. 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.
 This is something "authorlaw.com" attorney Sallie Randolph and I often bicker about. I advise writers to resist such clauses (or demand better royalties for taking on the risk). Sallie, who has negotiated hundreds of author contracts, tells me this is not realistic advice, because for most major publishes, it's non-negotiable. But as I see it, everything in a contract is up for negotiation!
 A good resource for double-checking the date when works are in the "public domain" (which can vary) is at https://guides.library.cornell.edu/copyright/publicdomain. Thank you, Cornell.
 I discussed this part with Sallie Randolph, too, and for once, we agreed! When contacting an organization about a public domain image, never ask for permission, but say something like "I am contacting to discuss using a public domain image from your [archive] to see how you would like the organization credited for having made the image available to researchers."
 For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/172.
Tags: Academic Libraries, Archives, Copyright, Liability, Photographs, Public Domain
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.
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.
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 .
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:
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" 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 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.
 A critical example of this issue—use of a person's image in ways that raise question of agency and ethics (to say nothing of basic human decency) is found in the saga of the images of people named Alfred, Fassena, Jem, Renty, Delia, Jack, and Drana, all subjected to enslavement in the 19th century. The images are commonly called the "Zealey Daguerotypes" and the disputes about them start with how they come into being, as well as how they are used in the present day. For a good summary of this saga, see https://www.nytimes.com/2020/09/29/books/to-make-their-own-way-in-world-zealy-daguerreotypes.html.
 "Established" by recognized authorities, not by me. My go-to for this will be the Code of Ethics of the Society of American Archivists, found at https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#code_of_ethics, and the Code of Ethics of the International Council on Archives, found at https://www.ica.org/en/ica-code-ethics.
 This "Ask the Lawyer" is only addressing the question about minors...I am not tackling the fact that the rights to the relatively recent photos may be held by still living people, or relatives!
 This does not need to be a flagrant "notice and takedown" process; it can be accomplished through a simple statement like: "The ABC Archive [is accredited by/follows the ethics of DEF]; if you are concerned that the depiction of any individual or the inclusion of certain content in this collection is contrary to those ethics, please contact GHI at ### to share your concern."
Tags: Copyright, COVID-19, Digitization and Copyright, Ethics, Archives, Photographs
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.
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.
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” 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, 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:
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.
 This makes it sound like it was rated “R.” I assure you, the content was PG. It was just legal advice.
 A very good example can be found here: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf
 Reiner v. Nishimori No. 3:15-cv-00241 (M.D. Tenn. Apr. 28, 2017)
 This factor routinely messes up judges, and I personally disagree that “creative” works might qualify for more protection that laboriously and carefully assembled facts. But I am not a judge!
Tags: Copyright, Fair Use, Academic Libraries, Photographs