Imagine you found a collection of historic photographs online that pertain to your research, and you want to use two or three for a digital exhibit. How can you determine if you have permission to use them? I’ve put together a short guide to help answer that question for those photographs and any other source you might find online.
I think it’s important to remember the definition of rights or copyright as you consider using someone else’s content. According to Franky Abbot from the Digital Public Library of America “’Rights’ refer to reproduction or publication restrictions on an item—its copyright status according to US law.” The creator of a work, therefore, can determine how their work is copied and shared for a set number of years, after which it becomes available to the public (Abbott 2015).
One interesting thing is that copyright doesn’t just apply to published materials. The key is that it exists to protect creative work (because you can’t copyright facts), but even a letter or a draft of a story you’ve been keeping tucked away falls under the umbrella of copyright. (see Dombrowski and Sag 2020).
Where to Find Rights Information
If you are lucky and you are perusing a library or archive catalog when you find something of interest, the metadata for an item will usually have a rights and access statement about how the item can be used. Sometimes you have to poke around to find it. For this map at the New York Public Library, there is a slider menu on the right side of the image, where you’ll find the rights information. Occasionally for smaller collections rights information is listed in one place for the entire site. The Willis Bell Photographic Archive has a small link in the footer of the website with copyright information. If no rights information is listed, you can usually direct your question via email to the institution that put the item online.
Whether the rights are explicitly stated or not, it’s a good idea to understand how to determine a copyright status yourself by following these steps:
PART I – Determine the Copyright Status
Step 1. Establish whether the work is in the public domain
If the work is in the public domain, you’re free to use it without restriction or attribution but determining whether something is in the public domain will require knowing some things about the content and its creator. If you are looking on the website of a library or archive, much of that information should be in the metadata.
There are five ways content typically comes into the public domain. I’m borrowing from Franky Abbott for this list.
1. Copyright has expired. For published work in 2026 that includes items published before 1930 (95+ years since creation). For unpublished works, the rule is 70 years after the death date of the creator or 120 years from the date the work was created. That’s right, in many cases unpublished works have greater protection under copyright law!
Side note: published means something slightly different in copyright law than you might think. It is determined by the date a work is first distributed to the public. Franky Abbot’s presentation, she gives an example of a menu and states that it is published according to copyright law because it is distributed to the public.
2. Copyright owner published work without copyright notice (only applicable for items published between 1923 and 1977). The copyright owner had to put a label on the work stating that it was copyrighted, including a date and the name of the copyright owner (something like Copyrighted 2026 Kristin Andrews). If it wasn’t included at that time, it wasn’t copyrighted and is considered in the public domain.
3. Copyright owner failed to renew copyright status. This is only for items published between 1923 and 1963 that DID have a copyright notice added to the work BUT the creator didn’t file renewal paperwork. This requires research, but it is possible to see if something that looks copyrighted during this time is now in the public domain.
4. Copyright owner dedicates the work to the public domain and waives rights by using the Creative Commons Zero dedication (You would need to see this designation on the materials you are evaluating. Read on to hear more about Creative Commons and where to look for this).
5. Copyright does not protect the type of work. Documents created by the Federal government and its employees (as part of their work) are public domain. This also applies to some states.
Step 2. If the work is in the public domain, skip to Part II (Terms of Use). If the work is not in the public domain (copyright applies), look to see if there is a license for use.
Many copyright holders are willing to share their creative works under specific terms. These are known as Creative Commons licenses. You may find that a creator is allowing you to use their photo or video, for instance, if you give them credit or don’t alter their work. There are six different types of Creative Commons licenses. Rights information on many websites will include standardized licensing information (usually in the metadata for an item but more information can often be found in a footer link or in the About section for a collection). For more information on the types of licenses, visit the Creative Commons website.
Also, remember that attribution is best practice, even when not required.
Step 3. If there is no license for use, consider what options you might still have for using copyrighted material.
Consider the following options for using content:
- Wait until the term of copyright is over.
- Contact the creator (if known) and try to get permission.
- Determine if Fair Use might apply to your use of the item.
Fair Use
Fair use is the gray area. If you want to use a copyrighted source in a limited way and you haven’t been able to get permission, you can think about whether your use of the work would fall in fair use territory. There are four main principles to consider as to whether you can get away with using a source. (See Abbott 2015 and Dombrowski and Sag 2020).
Non-profit or transformative vs. commercial or duplication – Simply republishing someone else’s work or using it to sell something is not going to hold up well. Using a portion for a research project would be OK according to fair use.
Factual vs. creative – Facts can’t be copyrighted and can be used more freely than creative works.
Small amount vs. complete work – Fair use says a small portion of the work could be permissible while reproducing a complete work would be outright copyright infringement.
Doesn’t hurt market vs. potential to hurt market – Will the use of the work hurt sales for the creator?
If you weight these four factors and determine that you have a good case for 3 out of 4, you are probably safely in the fair use zone. There is always a certain amount of risk in publishing something that is copyrighted. If the author or creator doesn’t like that you’ve used their work, they may ask you to remove their content, so it’s a good idea to ahead of time whether you are operating in safe territory or infringing on their rights.
Now before you get too excited about the fact that you determined that your source is available to use, please consider the terms of use for the website on which you found it.
Part II. Terms of Use
At this point you have determined if the content you want to use is free to use under public domain, available to use under the terms of a license, or you’ve sought alternative solutions to resolving the copyright problem. Let’s say that you have determined that you can use it for your purposes according to copyright law. The next step is to check the Terms of Use for the website on which it is published.
Probably every possible website where you could find a source has terms and conditions associated with the use of the site. Unfortunately, that means that the company or organization running the site can control how you use the sources found on their site, even when they are clear of copyright concerns. Judy G. Russell of The Legal Genealogist explains that this contract law and that it is enforceable because you can own things that you don’t hold copyright for. This is an annoying extra layer, but it’s very important to pay attention. The terms of use for a website are usually found linked at the footer on a website and can be full of legal jargon, so make sure you read carefully.
That’s it! You made it through. It seems like a lot to consider, but you don’t want to spend months or years working on a project that you can’t ultimately publish because of copyright concerns. It’s much easier to make the assessment when you are evaluating source options upfront.
References
Abbott, Franky. “Understanding Copyright.” Public Library Partnership Program, Digital Public Library of America, 2015
Dombrowski, Quinn and Matthew Sag. “DSC #7: The DSC and Mean Copyright Law.” The Data-Sitters Club, September 22, 2020. https://datasittersclub.github.io/site/dsc7.html
Russell, Judy G. “A terms of use intro.” Links to an external site.The Legal Genealogist (blog), April 27, 2012.