Image Collection Guidelines:
The Acquisition and Use of Images in
Non-Profit Educational Visual Resources Collections
As published by the VRA Committee on Intellectual Property Rights
Many educational disciplines are dependent upon the use of illustrative images for teaching purposes. Visual resources collections which support those disciplines strive to assemble the best resources in terms of technical quality, fidelity to the underlying work, accuracy of basic identifying information, and flexibility of access and utilization. The development and use of these resources should be guided by the following principles in regard to acquisition, attribution, display and responsibility.
The acquisition and use of image resources, as with any intellectual property, is governed by legal conditions, as well as by practical, technical, and scholarly considerations. Intellectual property law, including the concept of Copyright, attempts to balance the sometimes competing interests of those who produce or provide such resources, and those who use them. It is the intent of this Guide to enable the visual resources professional to acquire image resources for educational, non-profit use in a manner that respects the rights and concerns of providers, while acknowledging public domain rights and educational exemptions such as Fair Use.
Although these guidelines have been reviewed by legal counsel, the content represents the consensus of visual resources curators and does not constitute a legal document. For further guidance on acquisition, attribution, display, and responsibility, individual visual resources curators should consult the legal counsel of their respective educational institutions.
Acquisition of visual resources falls into several categories: purchase and license, donation, and copystand photography.
1. Purchase, license, or otherwise legally acquire, the following in developing permanent archives of images:
- slides or digital files from museums, galleries or other such institutions
- slides or digital files from vendors and image providers
- original on-site photography produced for sale by professional or highly skilled photographers.
- slides or digital files distributed on a free-use basis through recognized educational or professional institutions, organizations and consortia.
2. Gifts and donations are considered legitimate forms of acquisition, even though they may be subject to restrictions or requirements by the donors. It is recommended that donors of original photographic images in whatever form be encouraged to grant in writing to the recipient institution discretionary rights over extended use, as well as physical custody, of the photographic materials.
3. Images created by copystand photography and scanning from published materials for inclusion in the permanent archive are subject to the following considerations:
- images of suitable quality are not readily available at a reasonable cost and in a reasonable time from any of the options listed above
- images will not be shared between or among other educational institutions if such use is prohibited by the terms of their acquisition.
- images will be used for comment, criticism, review, analysis, discussion, or other similar purpose associated with instruction or scholarship
- images will be used for purposes that are both nonprofit and educational.
- If these conditions can be met, it is likely that making images and digital files from published materials will be within "fair use" as outlined in the Copyright Act of 1976.
Uses outside the understood parameters described above, such as use on an unrestricted website or in print publications, including scholarly publications, are not covered in this document. Such uses to be considered fair must be judged independently and individually, using the four-factor analysis described in Section 107 of the Copyright Act of 1976. The four factors to be considered in determining if a use is a fair use are: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the material used; and (4) the effect on the market.
4. Public Domain images (those in which neither the underlying work of art documented nor the photographic reproduction itself is subject to copyright) may be safely acquired by any appropriate means, including copystand photography or scanning. Use of such images is unrestricted. (**see VRA Copy Photography Computator)
To the extent that such information is available, it is recommended that all images acquired for the permanent archive of an educational institution should be identified with the following:
1) source of image
2) year of acquisition
3) in the case of a purchased or licensed image, the provider's inventory or identifying number or code.
While the traditional means of display for such image archives have been through projection, or otherwise viewing the physical surrogate (photograph, slide, video, film), the introduction of new technologies, specifically the digital environment of the Internet and the World Wide Web has expanded the display options. There is little in the way of legal precedent, code, or case law which addresses the issues particular to educational image archives. However, it seems reasonable to expect that digital materials should be available to the same user group that the analog collection serves, for the same purposes.
Analog materials acquired as outlined above may be used in digital format as follows:
1) Images purchased or licensed are subject to the conditions specified at the time of purchase or according to license agreement.
2) Gifts and donations are subject to restrictions made at the time of contribution. In addition, a gift of images purchased by the donor may be subject to the conditions of the original purchase.
3) Images made by copystand photography may be digitized and used digitally according to the same criteria under which they were originally acquired for analog use.
The educational institution holding such an archive should have a designated overseer who is responsible for carrying out the principles outlined above. A budget sufficient to make purchases described above should be allocated. Information on source data should be available to the collection users.
Under the law, liability may be held by both the institution and the individual; however, individual liability may depend on the institution's policies. Usually, although not always, individuals who adhere to institutional policies will be indemnified by their institutions against all the costs they may suffer if they are sued. Following institutional policy is a good way for individuals to stay within the protections of a good-faith fair use defense. It is recommended that the designated overseer discuss institutional policies with the institution's legal counsel.
An Expert's Comment on Legal Responsibility
by Georgia Harper, University of Texas, Office of Legal Counsel
An educational institution holding an image archive should have a designated overseer who is responsible for carrying out the principles outlined in the VRA Image Collection Guidelines. Information on source data should be available to the collection users.
Under the law, individuals are liable for copyright infringement along with their institutions; however, individual liability for the costs of a lawsuit may depend on the institution's policies. Usually, though not always, individuals who adhere to institutional policies will be indemnified by their institutions against all the costs they may suffer if they are sued. Similarly, the law gives judges discretion to cancel an award of damages if an infringer had a good-faith basis for believing that the infringing use was a fair use. Following an institutional policy is a good way for individuals to stay within the protections of this "good-faith fair use defense."
On the other hand, an individual who ignores institutional policy will likely be fully responsible for the consequences of his or her actions, including the court's possible assessment of statutory damages up to $100,000 per act of willful infringement. Willful infringement means that an individual knew an act was infringing and did it anyway. Statutory damages are those authorized by the copyright statute as an award to a copyright claimant without any need for the claimant to prove that he had even one cent of actual financial damage from the infringement. He proves infringement, and he gets the statutory damages.
For acts of infringement that are not willful, as where an individual might be completely unaware of the law or that his or her action is infringing, statutory damages range between $500 and $20,000 per act.
Last Updated May 11, 2004