Viva public domain!

This lovely image comes from the Farm Security Administration and is of a Polish farming couple standing just outside their tobacco barn. Photo by Jack Delano and assumed to be in the public domain.

Public domain — the words tantalize us with their promise of free images for our videos, web sites, and publications. Public domain images 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.

If you use a public domain photo 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, and photos of the nearly decapitated girl ended up on the Internet. The girl’s family sued the Highway Patrol.

At first, a court ruled that privacy rights don’t extend to the dead. But on appeal (http://www.newsweek.com/2010/04/18/one-step-closer.html), this decision was overturned and 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, but particularly with those that involve human beings. A rule of thumb (very general) has been that if someone can be identified in a photo, then he or she had rights over the use of that image. I once did work for a company who forged its own, very narrow, definition of privacy rights. Its 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.

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

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, and so these other collections are invaluable.

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, if you’d like to know more about public domain and media law:

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