The Creative Use of Images
The creative use of images can be more complicated than the scholarly use of images. There are 4 domains under which images typically fall:
Of these domains, Creative Commons licensed images are the easiest to use because the license is explicit about usage rights. Although there are a variety of Creative commons licenses, some of which are restrictive, it is often possible to find images under the more generous licenses, such as CC BY.
Public Domain is also fairly straightforward -- in general, images in the public domain can be re-used at will -- but be wary of re-using "public domain" images across national borders, because definitions of the pubic domain can vary with national law.
Commercial licenses tend to be more restrictive than copyright and the point of such licenses is usually to make money, so enforcement can be swift. If you can use alternative images, you probably should.
Copyright tends to be the most difficult of these domains to navigate because copyright is not perfectly explicit. There are four factors which determine whether the use of an image or other resource is "fair use" under copyright. These four factors have been described helpfully by the Stanford University Libraries.
In general, a fair use must be "transformative;" however, creative art works are problematic, because many art works are made to be sold or could eventually be sold regardless of intent at the time a work is created, so the commercial aspect of the use might weigh against other aspects of the use of a copyrighted image. For example, the practice of collage is highly fraught with the possibility of copyright infringement.
Fortunately, in 2015, the College Art Association released a Code of Best Practices in Fair Use for the Visual Arts. See page 11 of this code for more guidance on the transformative re-use of copyrighted images.
The Scholarly Use of Images
In brief:
- Fair use is not perfectly defined. There are gray areas. To learn more about your right to use images in your scholarly paper or presentation, please read the one page Executive Summary of the Statement on the Fair Use of Images for Teaching, Research, and Study released by the Visual Resources Association. The VRA Statement summarizes historical norms of fair use and commonly held educational and scholarly practices, but does not represent a negotiated agreement between educators and publishers, much less a legal definition, of what is allowed in all circumstances under fair use. Read the full statement for a better understanding of the risk you take when you rely on fair use.
- A lot of ink has been spilled on copyright and fair use. For scholars heavily reliant on image re-use, some further reading will be worthwhile.
Regardless of whether an image is under copyright, under a license, or roaming free in the public domain, PLEASE be sure to cite the source.
The VRA Statement applies only to copyrighted still images used for teaching, research, and study, including images found on the web or scanned from books or other hard copy. Other uses, whether for artistic, commercial, or other purposes, are not considered by this statement.
