Finding Public Domain Images

How can you tell if an artwork (a painting, for example) or graphic design (such as a vintage advertisement) is in the public domain? There are many reasons you might want to use existing imagery that’s not your own when creating your art, and the public domain is an exciting treasure trove of inspirational material that is free for all of us to reinterpret (i.e. create “derivatives”).

Perhaps you have a hankering to recreate a 17th century Spanish still life as a limited edition screen print. Maybe you want to use scans of vintage textile patterns as part of your mixed media collage. Or you might have your eye on a photograph you’d like to use as a backdrop for a hand-lettered quotation. For all these uses and many others, it can be very helpful to know how to determine whether the image you’d like to use is in the public domain.

While sometimes the answer might be obvious (e.g. you have your own first-hand reference for that Spanish still life, snapped or sketched while you were visiting the Prado last summer), sometimes it’s a little murkier (e.g. you discovered the painting in an online museum catalog and that copyright-protected reproduction is the only source material you have access to).

Below I’ll help you sort through the nuances by looking at several different sources of public domain material and, where it’s not so obvious, give you some tips for assessing whether your use may be okay. I’ll start with public domain sources with the clearest boundaries. Note: (I’m confining my discussion to U.S. copyright law.)

Explicit dedication to the public domain

A lot of images are affirmatively offered free of copyright restriction. These are images that would otherwise be under copyright but the copyright holder has waived her rights and dedicated the image to the public. This category includes images offered under “Creative Commons” licenses that authorize use without limitation.

Images that lack enough original content to be copyrightable

There’s an originality requirement that an image must meet to be copyright eligible. The U.S. Copyright office has a list (see paragraph 313.4) of “works that do not satisfy the originality requirement.” This includes familiar symbols and designs such as musical notes, currency symbols, arrows and other directional signals, common representational symbols such as a spade, heart or diamond, common patterns such as the checkerboard, polka dot, chevron, or houndstooth, as well as the peace sign, gender signs, crosses, stars, crescents, Greek and Roman columns.

Images that were never under copyright

The U.S. didn’t have a copyright law until 1790. And in the beginning, that just covered printed materials like books and maps and charts. Photographs got coverage in 1865. Paintings didn’t make the cut until 1870. So think of all the works out there in the world that are public domain because they were made in a medium that didn’t get protection at the time.

Images that were once under copyright but are no longer

Then, of course, there are all the images that once were, but no longer are, under copyright. If you read my piece on quick and easy sourcing of public domain text, the same date considerations apply to images: anything first published in the United States before 1923 is no longer in copyright in the U.S.  (As with quotations, many images published after 1923 may also be in the public domain. For instance, the copyright may not have been renewed. These cases require some sleuthing in the copyright registry, but for now I’m looking at the simple and straightforward content sources.)

For this class of images, the first step to determining the U.S. copyright status is figuring out when an image was first published because the copyright term begins to run once the image has been published. What constitutes “publication”? The general rule is that publication of an image occurs when it’s made available to members of the public at large without regard to who they are or what they propose to do with it.

Let's be honest: that's not a super helpful definition. And there's some ambiguity (in the form of court decisions) about how to interpret it. For example, offering a painting for sale in a gallery open to the public has been found to be publication, but merely showing it in such a gallery is not necessarily publication.

So what can can be said with certainty is publication? Reproducing a painting or photograph in a newspaper or magazine is publication. Selling postcards or print reproductions of an image is publication. As a practical matter, the most common way to figure out if an image has been published is to find it in a book, catalog, magazine or other traditionally published medium. This class of printed materials will ordinarily state a print date and distribution to the public ordinarily constitutes publishing.

For this reason, a lot of the images you’ll find on the Internet billed as public domain are scans from books and magazines published in the U.S. before 1923. These images can be used without limitation and there are a lot of them. There are many great websites that are dedicated to collecting and freely sharing such images. (When using sites offering public domain images, remember that you must still use your good judgment and awareness of copyright rules, as the sites’ owners typically disclaim any liability for your use.)

You can also directly source your own public domain images. Your public library, favorite used bookstore, thrift stores and flea markets also likely contain many books published before 1923 (which you can verify by looking at the book’s copyright page), filled with wonderful public domain photos, illustrations, and designs.

What about a public domain image that’s photographed and republished more recently?

You may well wonder why the reproductions you find (online and in printed materials) of old public domain images--for instance, paintings that were made in the 1700s--sometimes carry a copyright notice. You may ask whether you would be infringing if you used those reproductions. This brings into play the idea of derivative copyright.

So what about the derivative copyright?

While it’s great to know that an image is in the public domain, it’s another issue whether you’ve got access to a reproduction you can use. This is both a technical and a legal question. By way of example, I’ll use a hypothetical painting you would find in a museum, but remember that this discussion applies equally to things like textile designs, photographs, and printed ephemera for which you can confidently ascertain that the original is in the public domain.

On the one hand, that photograph of a public domain painting you took while visiting a museum is yours and yours alone, but when you go to actually make use of that photograph for your own work it could well be flawed—too dark, too grainy, shot on an angle—to be useful for your purposes.  On the other hand, the digital image of the same work on the museum’s website looks pretty great. Well lighted. Crisp focus. Shot from straight on. It looks a lot more like the painting you remember. In fact, as you search for images on the Internet you’re very likely to find many high quality reproductions of the very works you’re confident are in the public domain. And very often, you’ll see that the image bears a copyright notice and is being offered under a license for a fee. What’s up with that?

Is it merely a copy?

This is where the “originality” requirement of copyright comes into play. A reproduction must add some new content to the underlying work in order to be independently copyrightable. A “mere copy” of an artwork has only the copyright status of the original. It turns out that many of those online images may well be “mere copies.”

The key case on this issue—Bridgeman Art Library versus Corel Corporation—came out in 1998. Bridgeman, which bills itself as “The World’s leading Rights Managed supplier of Art, Culture and Historic images,” contracted with museums for access to great public domain works of art and created high-quality photographic duplicates of those works, which it then offered to license for commercial uses and for sale on CDs for noncommercial uses. Corel Corporation accessed the CDs through a third party and proceeded to offer many of the individual images for sale in their own art-based products. Bridgeman asserted that even though the underlying paintings were public domain, its photographs—taken at great expense and with fidelity to the original artwork in mind—were separately copyrightable derivative works. The court disagreed, finding that Bridgeman’s “exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original.” The copyright buzzword is that an exact copy is “slavish” to the original, meaning that it looks so much like the original that it lacks originality and gets no separate copyright protection.

Phone books, piggy banks and the public domain

The judge in Bridgeman v. Corel relied on two important higher court cases. The first one, Feist Publications, Inc. v. Rural Telephone Service Co., was a U.S. Supreme court decision finding that a telephone company’s white pages publication was not copyrightable. In Feist, both parties agreed that the compiled facts—the name, home town, and telephone number of telephone line owners—were not in themselves copyrightable. But they disagreed over how much “originality” was needed to make the specific compilation copyrightable. This case is important in part because it looked at the issue of the “sweat of the brow” versus newness or creativity. The telephone company had gone through the work of collecting and compiling the data (i.e, it had expended “sweat of the brow”) but its final product, an ordinary alphabetical compilation, just wasn’t original enough, sweat or no sweat, the court decided.

The second case the Bridgeman judge relied on was L. Batlin & Son v. Snyder. In that case a manufacturer claimed copyright protection for a plastic, reduced-scale piggy bank copy of a larger, metal version that was in the public domain. Despite the derivative’s change in materials and size from the original, the circuit court found the plastic replica to be a slavish copy. Relying on these cases, the judge in Bridgeman found that even though the Bridgeman Art Library had transferred the public domain image to a new medium (photography), and expended considerable technical skill and expertise in the making of its photos (i.e. sweat of the brow), the resulting faithful photographic derivatives lacked creativity and were instead slavish copies.

The Bridgeman decision has been around a long time and most commentators believe that its reasoning is solid (see for example this 2012 interview with University of Virginia law professor Christopher Sprigman). It’s even cited in the Compendium of U.S. Copyright Office Practices (at 313.4(A)) for the proposition that copyright protection is not given to “mere copies.” But the loser in that case, the Bridgeman Art Library, apparently chose to not appeal the trial court’s decision. As a result (and this is important!) the Bridgeman v. Corel decision is only “persuasive” rather than “binding” legal authority. Other courts don’t have to follow it.

Putting the Bridgeman decision to the test

Since other courts don’t have to follow it, it’s still possible that a museum or other maker of digital photographic copies of public domain artworks could sue and win. So that leaves room for the creators of arguably “slavish” 2D images of public domain artworks to continue asserting a copyright interest in the photographic reproductions they offer to license. Case in point, Van Gogh’s “Starry Night” is in the public domain. The original painting is in the collection of the Museum of Modern Art in New York City. Go to the MoMA website and look up “Starry Night” and you’ll see information on how to license MoMA’s photograph of it. But if you go to Wikimedia you can find a downloadable image of the painting along with language echoing the Bridgeman decision: “The official position taken by the Wikimedia Foundation is that ‘faithful reproductions of two-dimensional public domain works of art are public domain.’"

To my knowledge neither MoMA nor any other maker of Starry Night “slavish” copies has sued Wikimedia for copyright infringement. And in the press it’s been said that in the wake of Bridgeman v. Corel the museums have stopped suing on unlicensed uses of their photographs of public domain paintings. But they could. And that’s enough to keep many people paying for licenses. It’s a strange situation. The museums don’t want to sue because they could end up with another Bridgeman-style decision from an even higher court that could become binding precedent for dozens of district courts. Such a decision would effectively call their bluff and make them look dishonest if they continued to seek licensing royalties. But if they don’t sue, then a good stream of uninformed or risk averse users will continue to pay for licenses to avoid the risk of being sued.

What does all this mean for you?

In effect, whether you choose to use this type of image or not boils down to how risk tolerant you are. Remember: Bridgeman only says that flat 2D duplicates of flat 2D public domain artworks aren’t creative enough. A 2D image of a public domain 3D sculpture might have enough creativity, due to artistic choices regarding angle, lighting, placement in the frame, etc., to be separately copyrightable. So your first step is to be sure that the underlying work you’re interested in is truly in the public domain and second, if you’re keen on using a reproduction you’ve found, satisfy yourself it’s a “slavish” copy and not something that has enough “newness” to qualify it as a copyrightable derivative. (Remember that this cuts both ways: if your new artwork is based closely upon a public domain work but contains enough of your unique creative content or transformative expression, it may well be copyright protectable by you.)

For those who want to use public domain images but don’t want to mess with even the possibility of a 2D image maker asserting copyright, you can look for sources that are unlikely to assert unreasonable derivative copyright claims. For example, large institutional image holders like the Library of Congress, the National Gallery, the British Library, and Wikimedia Commons willingly supply both images and, frequently, enough factual information for you to be reasonably confident that the underlying artwork is out of copyright. Likewise, there are sites like The Graphics Fairy and the mom-and-pop image site, which provides unlimited access to thousands of great public domain illustrations and graphic designs for a small monthly fee.

Pond5 is another excellent stock photo site that has a great collection of vintage photos in the public domain. They also have a super helpful video explaining what the public domain is, and they explain a couple of instances where one needs to exercise caution in using public domain resources for profit. Check it out here.]

In short, determining whether an image is in the public domain is a matter of applying rules to often imperfect information. Sometimes you just can’t be 100% sure there’s no risk of being called out by someone claiming a copyright interest. Always consider the source. At the end of the day, it’s up to you to decide how much risk you’re willing to take in using an image reproduction you’ve come across.

by Chuck Cordes

Important notice: The information contained on the LOCC website is intended as general information only, aimed at familiarizing you with legal issues that may affect your art-based business. It is not a substitute for a one-on-one, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.