Lex Academic®

 

The daunting truth is that writers, like all creators, need to obtain the rights to use any intellectual property created by another person. Academics are not excepted. Obtaining the rights to reprint photographs, graphics, or lines of poetry is a notorious faff, which is why we offer a fully comprehensive professional text and image permissions service that takes all the stress and anxiety away for you. But, in this blog, we’ll review the things you need to consider when sourcing images or quotations to populate your academic books and articles yourself. We’ll also look at how you can do this without spending money (where possible). But, first, an assurance: the connectedness of academic writing protects us from most copyright issues.

Scholarly writers will mostly reproduce third-party intellectual property in order to criticise, quote, or review it. As long as you cite your sources, your quotations and paraphrases will almost certainly come under the category of ‘fair dealing’. Or, in the USA, ‘fair use’, which is slightly different. (Fair dealing refers to exceptions to UK copyright law, listed and expanded on here; fair use is a defence in the more litigious American context, explained here.) Despite this fundamental difference, fair dealing and fair use amount to the same thing: an academic writer should safely be able to quote and criticise work without running into legal issues. Ornamental uses, such as epigraphs, require greater care, especially when they contain song lyrics, poetry, and printed music, the rights to which may be managed by more than one party. Reusing or reprinting your own previously published work also sometimes poses difficulty, because academic publications often ask you to sign away your intellectual property to them. If you’re not clear on a particular usage, your editor at the press should be able to advise, and if you’re a member of the Society of Authors, you can also consult their legal advisors (the Society provides its own basic guidance on copyright and permissions, but, for most scholarly uses, your editor’s advice should suffice). That leaves images.

You can technically ‘quote’ an image under ‘fair dealing’ or defend it as ‘fair use’, too. In reality, though, it’s hard to make the case, and the ‘fair’ use of a copyright-protected image will likely be limited to presentations, lectures, and course handouts. When used in books and articles, images usually come at a price (at least officially). If you’re lucky, your publisher might offer you a budget to acquire image rights. For academic publications, however, this is unlikely. Publishers regularly expect you to cover the cost of images yourself, or to use funds from a research budget. For all of us, but especially those who have been given no image budget, the story of Carol M. Highsmith – the celebrated American photographer – is a cautionary tale.

Highsmith has spent much of her life travelling America, photographing anything that caught her eye, from neon motel signs, to Idaho farms, to the first New Orleans Mardis Gras after Hurricane Katrina. This rich document of twenty-first-century American life is a wonderful resource. The New York Times and other major outlets have paid handsomely to reproduce her work, as much as $5,000 per image from rights-management websites such as Getty and Alamy.

In December 2015, Highsmith herself received a letter from a firm associated with Getty, insisting that she’d illegally downloaded and used a protected image on her website – an image she had created. Getty, the letter insisted, was due payment. She reacted as you might imagine. Why should a photographer pay to use their own photograph? Perhaps this misplaced demand sounds like an honest mistake on Getty’s part. With a library of hundreds of millions of images, mistakes like this must occasionally happen. But there was more to it. Highsmith had never surrendered her rights to Getty in the first place. No one, in fact, needs to pay to use Highsmith’s work. She began to donate her images to the Library of Congress in 1992. That’s over 100,000 images of American life, now free to download and use by anyone. The Library has described her gift to the world as ‘one of the greatest acts of generosity’ in its history. Surely, rights management companies have no business charging for that which is freely available.

Clearly taking this view, Highsmith filed a lawsuit seeking $1 billion in damages, claiming that 18,755 of her photographs had been illicitly claimed by Getty. Representatives of the company spluttered that they weren’t charging for use of a copyrighted image, rather they wanted money for ‘distribution’. And, as they put it, ‘distributing and providing access to public domain content is different to asserting copyright ownership of it’. Getty argued that Highsmith technically gave up the rights to her images when she placed them in the public domain. The court agreed. Images in the public domain are regularly commercialised. Highsmith’s case was demolished.^[1]

Searching for image rights can be a time-consuming activity, as even the archive in which you originally discovered them may not have the contact details of the copyright holder, if they even know who it is (sometimes all they can tell you is that it isn’t them). Companies such as Getty, Alamy, and Shutterstock make it easier, if expensive, to find and pay for images. And, as Getty’s letter to Highsmith suggests, such companies can be passionate about claiming what is due. It’s important to have a licence or agreement for all the images you use, and these services offer one option. But, as Highsmith’s case also illustrates, some companies aren’t always above putting a price tag on what is actually freely available. A little searching could reveal a similar image, even exactly the same image, available to use for free. And if an image is freely available, you don’t need to seek permission from its creator. In fact, you arguably shouldn’t approach an image creator at all if you needn’t – if they attempt to deny you permission when they technically have no right to do so, it may lead to needless awkwardness. The same goes for academic quotations. You may have reason to seek the blessing of an author you are quoting at length, but you should do so only if you are prepared to drop the excerpt should they refuse to give it, despite having the legal right to press ahead.

The Library of Congress, as we’ve already seen, has a substantial collection of images in the Public Domain. Wikicommons is another source of freely available images. And, for historic or contemporary medical matters, Wellcome Images is an enormous and ever-growing repository of free images. Social media posts can also be a source of images or quotable text, but they should be approached with more caution.^[2] First, although social media posts are generally in the public domain, privacy settings might be in place that effectively would revoke your permission to use them. Second, using images or text from someone’s social media platform is not necessarily ethical. There are etiquettes surrounding privacy settings that you need to be mindful of. Moreover, the information that a member of the public puts into the public domain might be there illegally – if it gives medical information, for example, or the personal details of children. And, third, the original poster might have themselves infringed copyright, so you still need to be careful when re-producing such content. Any image labelled ‘CC’ (Creative Commons) or ‘PD’ (Public Domain) should be safe to use, as long as you acknowledge your source. It’s also worth noting that copyright ordinarily expires 70 years after the creator’s death. Ordinarily. In some cases, rights have been extended. We should also recognise that many rights holders aren’t out to make money. Highsmith’s gift to the Library of Congress was more substantial than most, but plenty of people are happy to let you use the materials they own, with little more than an acknowledgement.

Should you choose to forgo professional rights management services choose to search for image rights yourself, you need to first locate the rights holder. Sometimes this is immediately apparent. You might find the image you want on the photographer’s own website. You might see a cited painting in a textbook. On the other hand, you might need to conduct a few internet searches. Google’s image search is sometimes useful to find other instances of the same image, a way to trace an unauthorised, uncredited image on a blog back to an owner. Or, at least a reputable source that does include a citation. If you are seeking permissions for numerous items, then it is advisable to keep a detailed log of your progress on a spreadsheet.

Once you’ve traced the rights holder, be nice to them. Phone them up, if you can, and feel comfortable doing that. Alternatively, your publisher may be happy to share an email template with you. Typically, a library, museum, company, or individual has the right to ask for reimbursement and terms. But in many cases, a rights holder will want nothing more than a ‘thank you’ and an acknowledgement, especially if you can assure them that you aren’t out for profit. Even large corporations are sometimes happy for you to use images they own gratis. The opposite, unfortunately, is also true. Some rights holders will demand huge sums, without even providing you with a high-resolution scan or copy. What happens when a company is sold or dissolved, or the rights holder has died? Who claims the image rights? Often, a few internet searches, emails or phone calls will lead you to the current holder. Google image search can be your friend here, too; an Internet Columbo might have done the detective work for you. Oh, and just one more thing: if it’s truly impossible to trace the rights holder, you might be able to claim the image as an ‘orphan’ (explained here). You still need to pay to use an orphan, but it’s far less than a commercial outfit would charge. And if you know who you need to speak to but they aren’t responding, you may have to abandon a given image or epigraph. While it is hugely important that you make every possible effort to clear all permissions before your volume enters production, if the copyright holder is unidentified or unknown, you might still be able to use the material in question, depending on the nature of the content. In such cases, you will have to include an appropriate disclaimer in your acknowledgments (where all permissions must be noted and those who granted them thanked), noting the outstanding permissions request:

Every effort has been made to identify all copyright holders and to obtain their permission for the use of any copyright material. I would be grateful to be notified of any corrections that should be incorporated in future reprints or editions of this book.

Finally, you may notice that rights management companies offer different licences. You need to be similarly explicit and tell the rights holder how you’re going to use their work, and how it’ll be distributed. A low-res photograph of a cake for a baking blog is quite a different thing from a high-res version of the same image destined for a printed recipe book. This is especially important if you, your agent, or your publisher intend to sell some of the rights to your book or article – perhaps for a translation or distribution on another continent. In this case, you may be asked to obtain rights for ‘all territories, all languages’ and possibly ‘in perpetuity’. Copyright holders will sometimes also ask for information about the circulation of your book or article. They will sometimes directly ask how many copies will be printed, so you should get this information from your publisher. If your book is a research monograph with a relatively low print-run for a library market, this should help to reduce the cost. The same may be true of certain student textbooks, if the copyright holder deems that they play a vital pedagogic role and are not simply a money-maker in a 45^th reprint edition.

But try not to use terms like ‘all territories’ and ‘in perpetuity’, which smack of legal agreements. They make your request sound overtly commercial. And don’t assume that because you’re an academic working on an obscure topic that you will get a sympathetic response. Some rights holders will accurately intuit that a 200-copy monograph on the cultural history of tooth ache isn’t a sign that you’re writing a bestseller. On the other hand, they might also see your research grant as a legitimate source of income, and apply an eye-watering price tag to their rare etching of a Bitoso the Fasting, the ‘tooth ache demon’ of the Bosnian Romani. As mentioned at the start of this blog, academics are not excepted from having to obtain permissions for the intellectual property of others. But, if you can assure the rights holder that you won’t be using their work to get rich, they will be more likely to (possibly, hopefully) waive their fees.

^[1] Highmore’s story can be found here: https://petapixel.com/2016/11/22/1-billion-getty-images-lawsuit-ends-not-bang-whimper/ and here: https://www.latimes.com/business/hiltzik/la-fi-hiltzik-getty-copyright-20160729-snap-story.html

^[2] https://www.ipso.co.uk/media/1510/social-media-public.pdf