Copyright Q&A: Including Photographs in a Book

by Kenneth Crews on June 24, 2011

I am in the process of writing a book for publication by XYZ University Press.  My book is about art and architecture, and I want to include a variety of photographs in the book from different sources.  Can you help me work through the copyright issues?

I frequently get questions such as this one, and I am glad to help.  Your management of the process should follow three steps, outlined here.  By the way, your original question is about photographs in a book.  I would probably start with at least the first two steps in connection with including copyrightable materials in a video, in presentation slides, on a website, and just about any other situation.

Step 1:  Assess the materials you are planning to use.  Line up the photographs as well as any other poetry, music, lengthy quotations where rights are held by other parties.  In the example of photos of art and architecture, you may need to assess two copyrights in a single work: the photographer may hold the copyright in the photograph, but the artist or architect may hold rights in the work that is captured in the photo.  In general, make an inventory of the works you want to include in the book and carefully document all relevant information about each item.

Step 2:  Determine the copyright status of each work—and how you may appropriately use it under copyright law.  What does this mean?  In most situations, you may include a photograph (or other copyrighted work) in your book if your use is in one of these categories:

•    The Materials are in the Public Domain:  Copyright does not protect everything, and copyrights do eventually expire.  Some other works, such as works of the U.S. government, are not copyrightable.  As a result, many works do not have copyright protection at all and are therefore available for use.
The Louvre in Paris
•    Your Use is Within Fair Use:  The law grants a right of fair use to the public under certain circumstances.  However, Congress deliberately created a fair use statute that gives no exact parameters; instead one must evaluate and balance four factors to determine whether that specific use is permissible.  Our website offers guidance about fair use and examples of court rulings about images and more.  Other exceptions may also apply, such as this one about photographs of architectural works.

•    You Have Permission from the Copyright Owner:  If the materials are protected by copyright, and your use is not otherwise allowed, you may need to contact the copyright owner and seek permission.  Our website includes additional information about permissions, as well as model permission letters.

•    The Materials are Creative Commons or Similarly Licensed for Your Use:  Some materials are prelicensed for many uses, effectively granting advance permission.  One of the most familiar examples is the Creative Commons license that is now applied to many works, permitting, for example, noncommercial uses with attribution.  Many books, journals, and image databases now offer their content with a CC license, making your use of the works easier and more effective.

Step 3: Negotiate with your publisher.  The publisher controls the printing press, so realistically the publisher has final say over what it will and will not include in the book.  You may resolve that something is fair use or public domain, but your publisher may disagree.  Have an honest talk with the publisher.  These are matters that are open to disagreement and persuasion.  Also, talk with the publisher before you start writing for permissions.  You and the publisher should agree on what items need permission and ascertain that the terms of the permission letter adequately encompass your current and future needs.

Finally, be flexible.  You might have to scrap or replace items you dearly wanted to include.  You might not find the copyright owner; a permission fee might be excessive; the great photograph you took at the Louvre might not look good when reproduced in black and white.  Dealing with copyright may not have been part of your plan, but addressing these issues diligently and creatively can help make your the process of writing your book more satisfying.

Kenneth Crews

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When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.