For years, I’ve regularly gotten requests from authors and publishers for licenses to reproduce images in books listed on The Online Books Page, or included in the local collection of A Celebration of Women Writers. Sometimes these requests relate to copyrighted books that I list but don’t control rights for; in those cases, I do my best to refer the request to the book’s copyright holder. But often, they’re for images in our own collections, from books published over 100 years ago. In those cases, I respond that the image is in the public domain (and our digitization, which adds no originality, is also in the public domain), so no license is necessary or appropriate.
Usually that response receives a thankful reply, sometimes with signs of surprise that an image can be reused without permission. But sometimes I’ll get back a more alarmed reply. “My publisher says I need a license for every image in my book, or I can’t use it,” it might say, followed by a plea for help in tracking down some long-defunct 19th century publisher.
I wish I could say this was an atypical anecdote. But, if you look around the Web, you’ll find that there are huge numbers of historic images– paintings, photographs, figures, and the like– that are behind access barriers, or closed off altogether from online access, when they don’t have to be. Artstor has over a million images of thousands of years of art that you can’t look at unless you’re at an institution that has a subscription. The fine arts image catalog at my own library has over 100,000 digital images, none of which can be seen online by the public outside of Penn, except in thumbnails. Neither Artstor nor Penn want to keep art away from the public; both are nonprofit educational institutions. But clearing images for free public access on a large scale has to date been impractical for these institutions.
Restrictions on images also create holes in other works. For instance, under the proposed Google Books settlement, images in books that might be under copyright would be blanked out unless the rightsholder to the book also asserted they held the rights in the images. These sorts of omissions can cut the heart out of many works. In a recent New Republic article, “For the Love of Culture“, Lawrence Lessig described how a critical table was omitted in an otherwise free article about his daughter’s possible illness, due to rights-clearance issues. “I could not believe that we were this far down the path to insanity already,” he wrote of the incident.
Part of the insanity is that many of these images from our cultural heritage are actually in the public domain. Many people are aware that copyrights prior to 1923 have expired in the US. But so have many copyrights from later in the 20th century. Pre-1964 copyrights generally had to be renewed 28 years after the start of their term, or they would expire. (Exceptions and further details are described here.) But most copyrights were never renewed; and that’s especially true for images.
In 1923, there were copyright registrations for 3,059 works of art, 1,149 scientific and technical drawings, 7,533 photographs, and 11,289 prints and pictorial illustrations, making a total of 23,030 copyright registrations for these classes of image. In 1951, 28 years later, there were 198 copyright renewals for all of these image classes combined. This represents a renewal rate of less than 1%.
We have just completed posting scans that make all active copyright renewals for artwork viewable online. In fact, once we finish scanning one last batch of renewals for maps and for commercial prints (meaning images created for product packaging and promotion) all active copyright renewals for any type of still image will be viewable online. In later years, the number of image copyright renewals grows slightly, but not by much. But the number of images published in those years grows substantially.
Images without a copyright registration of their own might still be under copyright if they were first published as part of a copyrighted book, newspaper, magazine, or other larger work. Fortunately, we have complete online renewal records for those kinds of works too. It becomes much easier to establish the public domain status of a newspaper photograph, for instance, if you know (as I previously revealed) that no newspaper outside New York renewed copyright for any issue published before the end of World War II.
Having copyright renewals online for artwork is an important step towards freeing the public domain in images. But there’s more needed to make copyright clearance practical at a large scale. Putting scanned renewal records into a searchable database (perhaps combined with fair use image thumbnails) will make it easier to find any copyright renewals that might exist for a particular image. (A similar database for book renewals already exists, and there are more book renewals than image renewals.) Making original copyright registrations available as well (as we now have for artwork through 1949, and soon will have for later years) lets us determine when the copyright for an image began, and whether it was renewed in time to prevent it from expiring.
Furthermore, establishing the history and provenance of images will let us determine when unregistered artwork enter the public domain. Registered or not, the copyright to an image created before 1964 began no later than its first US publication, and the copyright for many such images therefore ended after 28 years due to a lack of renewal. And the mostly-frozen American public domain still includes more work each year that was never published before 2003. On Public Domain Day last month, all such work by artists who died in 1939 entered the public domain in the US. (I won’t get now into the rather baroque rules for establishing “publication” of an artwork, but you can determine it if the history of the image is documented.)
So we have a rich treasure trove of images in the public domain that’s been largely buried under presumptions and uncertainties about copyright. By finding and sharing information about their copyrights, we can protect and enjoy these images in the commons of the public domain, where they can be viewed freely, included in new works, and reused in any way we can imagine. If you find this prospect intriguing, I hope you’ll help bring these images to light.