0.7 Artwork and photography  (Page 5/6)

V. Can artwork be used in a scholarly publication?

Q: I am working on an article for an academic journal in which I will be analyzing the style of three different 20 th -century painters. It would greatly enhance the article to display certain paintings along with it. Since this is for scholarly research and not for profit (I’m not being paid for the article), I don’t have to pay copyright clearance fees, right?

A: Your answer depends largely on the journal publisher. The publisher will have a policy on reprinting copyrighted works, and they will have the final say on whether or not a clearance fee should be paid. Many publishers insist on clearing every use of a copyrighted work, no matter how strong a case can be made for Fair Use. Some owners of artwork enforce their rights very stringently. Also, some academic journals do turn a profit, and so is seen as a commercial enterprise. A commercial publication can still claim Fair Use, but it is harder to argue for. In your situation, you should do what your publisher says.

VI. What are Orphan works, and how can they be used?

Q: I’ve found a photograph that looks to be from the early 1940s. There is nothing written on it, front or back. It was in a file in my school’s archives, labeled simply “Events”. I would like to use the photograph in a book I’ve got a contract to write, but the publisher says I must get copyright clearance for it! How should I proceed?

A: You have found an “orphan work”. An orphan work is a work made after 1923 whose owner cannot be found after a reasonable amount of work. You can’t get permission to use it, because you can’t find the owner, and you end up not using it, because your publisher is concerned about potential lawsuits. There are thousands, if not millions, of orphan works in the United States. We can assume that many are not worth much, but many others could be used in many creative ways. Some people are willing to use an orphan work without permission, but it is a “murky territory.”

Orphan status may or may not last forever for a given work. It lasts until the copyright owner is found. The status of a work being “orphaned” is not official or set by law. “Orphan works” is only a phrase used to describe items whose owner is difficult to locate. They can be photographs, literary, musical, etc.The U.S. Congress tried to pass a bill in 2006, 2007 and 2008 to clarify the status of orphan works and what types of searches were required before publishing an orphan work without copyright clearance. The bill was not written clearly enough to satisfy all interested parties, and it did not pass.(American Library Association 2011)

Q: I found a fantastic drawing in our collection of family records, but no one in my family knows who drew it or when. I would like to display it in an art gallery (it’s that good!) but both galleries I have talked to would not display it without knowing who the artist is and whether or not copyright clearance is required. I assumed that as a descendant of the artist, I am a current copyright owner. Is that true?