Stories of heroes and rascals, of shipwrecks and lost gold ... and stories of the just-plain-weird: Offbeat Oregon History

About copyright and using photos:

On this Web site, you will find plenty of old photos. You may want to take one or two and use them somewhere else. In most cases, that's not a problem, because whenever possible I select photos that are in the public domain. However, some images that appear on this page are being used under the Fair Use exemption under the copyright law of 1976, and if your plans don't qualify for similar protection, you can get in some trouble for this.

In case you're not familiar with this complicated question, here are some helpful guidelines:

Fair Use:

Fair Use is a concept in the copyright law of 1976 that provides for the use of copyrighted material without asking permission or notifying the rights holder under certain circumstances: "... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

Copyright law is one area in which Wikipedia is an excellent source. Here's a link to their explanation of the concept. Definitions are flexible. The most important thing to remember is this: If your proposed use is commercial, the burden of proof is on you, and if it's non-commercial, the burden of proof is on the copyright holder. That means if you're making money on something, and use an image on it, the rights holder can sue you on the cheap and make you spend your money and time building a case for why you should get to use it. It's almost never worth the bother. That's called a SLAPP suit -- "Strategic Lawsuit Against Public Participation" -- and is a real problem in our legal system. If, on the other hand, you're non-commercial -- as Offbeat Oregon History is -- the burden of proof is on them, and they will likely not spend the resources to challenge you unless they actually have a case.

Public Domain:

Determining whether an image is in the public domain or not is a complicated thing, but compared with Fair Use it's pretty clear-cut. Here's a link to a very useful guide from Cornell University if you want to get into details.

However, you can be absolutely sure something is in the public domain if it was:

  • Published -- as a postcard, magazine article, etc. -- in 1922 or earlier
  • Created by someone who died before today's date in 1944
  • Created by an unknown person before today's date in 1894

These don't apply if the original image has been transformed substantially -- for instance, by someone hand-tinting it, or using it as the basis for a hand-drawn sketch; the original image is in the public domain, but the derivative work is not. Scanning an image and adjusting levels in Photoshop is not considered transformative enough to assert a fresh copyright.

One final word: Please note that various persons and entities are asserting copyright rights over thousands of images and other assets that meet these simple criteria for public-domain status, so don't take the provider's word for whether an asset is protected or not. Some of these claimants simply don't understand the law; others are pirates trying to stake an illegal claim on the public domain. However, please note that it's perfectly legal to charge you for access to a public-domain image. For instance, a government archive will charge you a fee to access a glass-plate negative in their collection, but if that image is in the public domain, it cannot legally assert any rights over how you use that image after you have purchased access to it -- although you will find, if you look, that many of them try to do so.

Offbeat Oregon's case for a fair-use exemption:

Offbeat Oregon History is a non-commercial public-history educational resource centered around delivering a weekly newspaper column. It functions as a living laboratory for media franchise development, lessons from which are frequently drawn and used in class at Oregon State University. Whenever possible, we include links to the copyright holder, and when the image is available for sale, we link to that as well. Consequently, we are using images for comment, news reporting, teaching, scholarship, and research. Because we are non-commercial, the burden of proof is on a claimant to prove we do not qualify for this status, and because of our efforts to include links and references to the copyright holder, our use of these assets does not reduce the market value of copyright holders' rights, but rather — through increased exposure and traffic to their e-commerce sites — increases it.