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“no known copyright restrictions” is not FREE

The New York Public Library just contributed 1300 images to the Flickr Commons database. These are scans of photographs from the library’s collection. Flickr has them marked as “no known copyright restrictions“. They are from late 1800’s and early-mid 1900’s from what I have seen. They are attributed to photographers in most cases I reviewed.

Can you use them on your web sites?

Of course not. The rights to photographs usually belong to the photographers, and are licensed to others for specific uses. In cases where the photographer has placed the photographs into the public domain, or otherwise given them away, the people in the photos still retain rights to the use of their image. Even though a photographer owns the copyright of the image, he does not have permission to allow the use the image by others if the image includes something protected (such as a face or building or work of art). A photographer must obtain expressed written permission to use someone’s likeness, often done with a model release agreement. For certain structures and works of art, permission must be obtained from the holder of the rights to publish reproductions of that object. If you publish the image, you need to have proof in hand that  you have permission to use that image commercially.
Flickr has no such permissions to pass along to you. The New York Public Library admits it doesn’t even know if those documents are required for any given image, or if they ever existed. This is explained behind a link on the Flickr site:

Even though the images we have uploaded to The Commons on Flickr are in the ” public domain” and thus not subject to copyright restrictions, these photos may be subject to other third party rights, such as rights of privacy and rights of publicity. In all instances, you are required to obtain all necessary permissions before using our photos. For example, if you find a photo from NYPL’s collections that includes a person, you would be responsible for obtaining the permission of the person in the photo before you use the photo. Please read the Terms and Conditions of our website for more

In short, the risk is yours to assume. If you have a commercial website, you can be sued for the value of the commercial use of an image after the fact. In other words, the person in the photo is entitled at least to the value a model would have received for that use, and possibly more if the use is in conflict with that person’s desired public image.

Be careful about using images commercially (including on sites that draw traffic to AdSense ads). “no known copyright restrictions” does not mean it is free to use.

The most important thing to consider is that your use of images in violation of  copyright laws has been used by corporations to argue that they should be allowed to use someone’s image or likeness in their own advertisements, for free. That’s right – they would love to grab images from the web and use them on their ads without paying any models or photographers. So if you think you are helping to improve the world by ignoring arcane copyright laws, you may discover yourself enabling a whole new world where you find your smiling facebook profile on an ad for the latest herpes creme, or your wedding portrait in an ad for a divorce attorney.

We need to fix and improve our copyright laws, not eliminate them.

One Comment

  1. Russ wrote:

    Here, here.

    Monday, December 29, 2008 at 4:54 pm | Permalink