Viva public domain!

This lovely image comes from the Farm Security Administration and is of a Polish Farming couple. Photo by Jack Delano and assumed to be in the public domain.

Updated March 6, 2020

“Viva public domain.” The words tantalize us with their promise of free images for our videos, web sites, and publications. Public domain images and audio can come from the government, the public, and commercial works whose copyright has expired.

But there’s a price to pay for all that free public domain candy. You need to know some basic rules, or you could wind up in court or owing someone money.

For instance, public domain does not mean “released.” “Released” indicates that the human subjects in the photo have been properly released, usually by signing a subject release form and being paid a sum of money.

Public domain is sometimes not enough

If you use a public domain photo or audio with an unreleased human subject, you could be violating that person’s privacy rights. Here’s the part where I explain that I AM NOT A LAWYER. I don’t even play one on TV.

Still, I’ve worked in video and media (such as web sites) for many, many years, so you just might find what I have to say both interesting and valid.

Back to privacy rights. What are they? Well, they’re the basic right to privacy, under the U.S. Constitution. You are in control of how and whether your image is used publicly. You can lose your right to privacy under several conditions, including:

  • being a really famous person
  • becoming famous by accident (for instance, your spouse robs a bank)
  • being in a public place when a news photographer is there
  • death

But even death may not release privacy rights. Elvis Presley’s widow still owns the right to market Elvis’s image, and Elvis left the building a long time ago.

The Internet is, of course, becoming a factor in privacy rights. In a recent case a young California woman was killed in a high-speed crash. Her body was so disfigured that the coroner would not even let her family identify it. Yet a dispatcher who worked for the California Highway Patrol sent gruesome photos from the accident to her friends. Photos of the nearly decapitated girl ended up on the Internet. The victim’s family sued the Highway Patrol.

The first court ruled that privacy rights don’t extend to the dead. But on appeal (see Newsweek story), this decision was overturned. The dispatcher’s actions were deemed “morally deficient,” having caused emotional distress to the family for the mere purpose of creating a “vulgar spectacle.”

An extreme example of a public domain photo wrongly used.

My point is that you need to be careful with all images, particularly with those that involve human beings. A general rule of thumb has been that if someone can be identified in a photo, then he or she has rights over the use of that image. I once did work for a company that forged its own, very narrow, definition of privacy rights. The company lawyer said that if the person photographed could identify him- or herself in an image, then he or she had rights over the use of that photograph or video. Now that’s pretty specific.

Creative Commons public domain license

Become familiar with the Creative Commons public domain license. Many if not most of these public domain sources require you to give credit where credit is due. Some also require a fee for commercial use.

There is also the public domain “mark,” which allows works free of copyright restrictions to be easily found over the Internet.

Viva public domain!

So these very cool web sites, many of which I have used, can be mine fields for the uninitiated:

A bunch of resources here:

Yes, I use a great deal of (paid) stock photos and footage. However, I can’t always find what I want there. Or the budget can’t support my choices. So these other collections are invaluable. Again, viva public domain!

Create a paper trail for your public domain images

When you hire Basecamp Productions to make a video or a web site, you trust us to use public domain images when they’re beneficial to the project and legal. And we’ll give you a complete paper trail in case you need it. Call 410.404.5559 to talk more about your next media project.

Also, I can recommend some great books about public domain and media law:

Viva public domain!

by susan time to read: 5 min

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