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
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:
- BBC Sound Effect Library Really cool! Commercial fees may apply
- Biodiversity Heritage Society, open access digital library for biodiversity literature and archives, featuring 122,000+ photos and watercolors
- Bioinfo Animal Pictures Archive Animal photographs
- British Library (13 million books, 920,000 journal and newspaper titles, + more)
- Colour of the Earth Images from NASA SeaWiFS
- Computer Images of Southeastern U. S. Marine Fishes
- David Ramsey Map Center Historic maps
- Electronic Zoo/Net Vet Animal Image Collection
- Freeforcommercialuse.net (a loose coalition of photographers)
- Freshwater and Marine Image Bank
- Galveston Laboratory (SEFSC) Photo Album
- Graphics for Presentation and Publication from NOAA’s Climate Prediction Center
- Great Lakes Fish Species Images from Great Lakes Fishery Commission
- Great Lakes Fish Species Videos from Great Lakes Fishery Commission
- Metropolitan Museum of Art (375,000+ images)
- Morgue File
- National Aeronautics and Space Administration (entire library of historic images, current missions, astronomy pictures, Earth images)
- National Agricultural Library’s Special Collection
- National Geographic Geological Survey U.S. maps
- National Marine Fisheries Service Historic Image Collection, drawn from The Fisheries and Fisheries Industries of the United States (published 1884-1887)
- National Marine Mammal Laboratory Image Gallery
- National Snow and Ice Data Center Gallery
- New York Public Library Digital collection
- New York Public Library Digital Library Collections
- Berenice Abbott’s iconic documentation of 1930s New York for the Federal Art Project
- Farm Security Administration photographs by Walker Evans, Dorothea Lange, Gordon Parks, and others
- Manuscripts of American literary masters like Walt Whitman, Henry David Thoreau, andNathaniel Hawthorne
- Papers and correspondence of founding American political figures like Alexander Hamilton, Thomas Jefferson, and James Madison
- Sheet music for popular American songs at the turn of the 20th century
- WPA-era lithographs, etchings, and pastels by African American artists
- Lewis Hine’s photographs of Ellis Island immigrants and social conditions in early 20th century America
- Anna Atkins’ cyanotypes of British algae, the first recorded photographic work by a woman (1843)
- Handscrolls of the Tale of Genji, created in 1554
- Medieval and Renaissance illuminated manuscripts from Western Europe
- Over 20,000 maps and atlases documenting New York City, North America, and the world
- More than 40,000 stereoscopic views documenting all regions of the United States
- New York Public Library Open Access Maps High-resolution map downloads
- NMFS 125th Anniversary Period Photograph Collection
- NOAA Central Library’s Photo Collection
- Ocean Color Gallery from SeaWiFS
- Prelinger Archives (movies, now owned by the Library of Congress)
- Reef Snapshots from the Great Barrier Reef Marine Park Authority
- Samuel Zeller Archive (primarily cities of Europe)
- Shoreline Aerial Photos (Washington State Dept. of Ecology)
- S. Fish and Wildlife Service National Image Library
- Smithsonian Open Access Nearly 3 million 2D and 3D digital items from our collections—with many more to come. This includes images and data from across the Smithsonian’s 19 museums, nine research centers, libraries, archives, and the National Zoo.
- The British Library Digital collection of 1M+ images
- University of Washington School of Oceanography Retired Research Vessels
- USDA Pomological Watercolor Collection, 7500 high-res images, circa 1886
- Victorian Illustrated Shakespeare Archive, 3,000 illustrations
- Watercolour World, 80,000 stunning high-res images
- Wikimedia Commons
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:
- The Law (in Plain English) for Photographers (Third Edition)
- The Pocket Lawyer for Filmmakers: A Legal Toolkit for Independent Producers
- Media Ethics: Cases and Moral Reasoning (8th Edition)
- Mass Media Law 2009/2010 Edition
- Improving Access to the Public Domain: The Public Domain Mark (creativecommons.org)