The Catholic University of America

Copyright and Digital Images

IV. Source of the Images

A. Copystand Photography and Scanning

Digitization of copystand photography1 and slides scanned from published materials should be governed by the VRA guidelines.

B. Vendor Slides and Digital Images

In accord with the VRA guidelines, images purchased or licensed are subject to the conditions specified at the time or purchase or according to the licensing agreement. As such, the use of vendor slides and digital images is governed by contract law, as well as by copyright law. However, licenses, and even negotiated licenses, but certainly one-sided proclamations of rights or limits on rights, cannot have the effect of negating all the limits on a copyright owner's rights set out in the statute, unless a negotiated license expressly negates those rights.

If the terms of a purchase or license agreement for an image obtained from a vendor in the past are unknown, and the vendor cannot be located with reasonable effort or has gone out of business or if the vendor does not make a digital slide set available or grant permission to digitize a slide for a reasonable price, the image may be used if it cannot be obtained elsewhere at a reasonable price.* Information on what has become of certain vendors may be obtained by monitoring the Visual Resources Association listserv.

The extent of the use of digital images may play a role in determining the licensing fee. For example, the licensing fee charged for making images available to the entire university community would probably be greater than that charged for making images available only to students enrolled in a particular course.

The terms of a licensing agreement can be quite complex, and the Office of General Counsel is available to offer assistance and should be enlisted to review all licensing agreements. For general information on what to look for in licensing agreements, see the Yale University Web site, "Licensing Digital Information: A Resource for Librarians."

C. Photographs Taken by Faculty, Staff and Students

Photographs of buildings visible from a public place may be donated to the university by faculty, staff and students. Because the copyright protection afforded to such buildings excludes the right to prevent others from taking photographs of them (see Public Domain: Architecture), the only issue that needs to be addressed is the copyright in the photograph itself. That issue is resolved when the donor signs a release that permits the university to use the image at its discretion.

Photographs of fine art or other works that are in the public domain may be donated to the university. Because works in the public domain are no longer protected by copyright (see Public Domain: Fine Art), the only issue that needs to be addressed is the copyright in the photograph itself. A photograph that does no more than reproduce as faithfully as possible a two-dimensional public domain art work lacks the originality necessary for copyright protection, so such a photograph can be used freely. On the other hand, photographs of three-dimensional public domain works may well have the requisite originality as the photographer employs considerable latitude in creating his image. Such photographs would be protected by copyright and would require permission to use, unless the use is a fair use. The need for permission is resolved, as it is above for buildings visible from a public place, by obtaining a release from the donor.

To the extent that the donated photographs are of fine art or other works that are not in the public domain, the requisite fair use analysis must be performed or permission must be sought from the copyright owner of the original work.

D. Sample Release Form

Donor Consent Form

I own the copyright in one or more slides, photographs, videotapes, CD ROMS, disks or other materials, which have been given to

Name of Institution: ________________________________________________________

Description of the content of the photographs or other donated material:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

I understand the rights granted by this agreement relate only to the image or material I have created, and do not address any copyright issues that might exist with respect to the underlying building, work of art, or other object depicted.

I hereby grant to the institution named above the following non-exclusive rights (check all that apply):

  • The right to reproduce copies for non-profit educational purposes.

  • The right to digitize and post on a Web site available to the named institution's community.

  • The right to digitize and post on a Web site for viewing by the general public.

  • The right to distribute copies for non-profit educational purposes.

Donor's Name: ___________________________________________________________

Donor's Signature: _________________________________________________________

Date: ___________________________________________________________________

E. Images of Student Works

Whether written permission from students is required before posting digital images of their architectural models, fine art, or other works created in the course of their academic program depends on the university's policy on copyright. If there is no formal comprehensive policy statement on copyright ownership of such works, the custom and practice of the university may be considered. For example, at CUA, by custom and practice, copyright ownership resides with the creator/author. Exceptions exist in works for hire, and works created with significant use of university resources. As such, it is recommended that written permission from students be obtained before posting images of their work online.

1 A "copystand" is equipment designed to hold and illuminate an object (two- or three-dimensional) for the purpose of photographic reproduction. The term "copystand photography" is used here to refer to the standard practice of photographic reproduction from published materials for educational purposes, generally accomplished with the aid of copystand equipment.

* This approach is based on the "dysfunctional market" aspect of the 4th fair use factor. Where one can't get a digital slide or the permission to make one, the 4th factor weighs in favor of fair use. This is the logical inverse of the Texaco case's analysis (see Am. Geophysical Union v. Texaco, 60 F.3d 913, 920 (2d Cir. 1993)) of the 4th factor: the existence of a functional permission market for text materials makes the 4th factor weigh against fair use under most circumstances, except where the first 3 factors suggest the use would be fair and application of the 4th in this way would, through circular reasoning, convert an otherwise fair use to an infringing one.

Updated July 10, 2002 after attending G. Harper session on Advanced Copyright Law- NACUA 2002 annual conference.

Next

Return to the Copyright and Digital Images Page




links updated 6/5/08 rab