I am often asked if images that are posted on the internet are protected by copyright. Like many legal questions, the answer is “it depends.” The first question that needs to be answered is if the image (and the underlying work if the image is depicting a creative work) is under copyright.
If a work is under copyright, the copyright owner has the exclusive right to reproduce, distribute copies, create derivative works and, for certain works, the right to display or perform the work in public. Under current US copyright law, copyright arises on creation: when an original idea or concept is fixed in a tangible medium of expression (through writing or another means of recording) that tangible expression may be subject to copyright. Under prior US copyright law, certain formalities including a copyright notice and registration and timely renewal of copyright were required to maintain copyright in a work. If these requirements were not followed, the work may now be “in the public domain” – that is, no longer protected by copyright.
To determine if a work is under copyright, it is necessary to know the year it was created and the year it was published, if that is different. It may also be necessary to know if the work was published with a copyright notice, and whether copyright in the work was registered and timely renewed. It is also necessary to know whether the work was created by an individual or by an employee as part of their job. If the work was created by a deceased individual, it may also be necessary to know when the creator died. That’s a lot of information!
Works published before 1924 are now in the public domain. Works created after 2002 are under copyright for 70 years after the death of the creator; and in the case of works created by an employee within the scope of their employment, 95 years from publication or 120 years from creation, whichever expires first. That is a very long time!
Very often the information needed to determine if a picture found online is unavailable. In that case, you should avoid using the picture, or seek experienced legal advice for help in determining if the work is still under copyright, and whether your use might fall under one of the exceptions to copyright, such as fair use.
For help with all your copyright legal needs, contact Walt Lehmann ([email protected]) at Lehmann PLC (www.lehmannplc.com).