When you are looking for great images to communicate about science, the internet is a treasure trove. But it is easy to overstep legal and ethical boundaries.
Where your images come from, and how you get them, matters. (Sketching jackrabbit specimens, © B.G. Merkle, 2017)
This article is the first in a series aimed at helping you enhance your scicomm and sciart by avoiding visual plagiarism. It will do so by laying out some best practices for dealing with images (which are, by their nature) visual intellectual property protected by copyrights.
NOTE: I am not a lawyer, and no part of this article or series should be construed as legal advice.
Please chime in, in the comments or by contacting me, if you have suggestions for how to enhance this article or the series.
DEFINITIONS & TIPS FOR ETHICAL AND LEGAL IMAGE USE
Images are a crucial element of compelling science communication.
After all, something like 50% of our brains are keyed in to visual stimuli. And, more than ever, compelling images are easy to find on the internet. That makes the internet a powerful visual scicomm tool.
However, like most tools, how you use the internet to source images can have serious implications — in this case for your outreach, reputation, and efficacy.
No matter the use — presenting during a lab meeting, to a public audience, in a classroom, at a conference, or communicating via websites, news agencies, press offices, and social media — using images ethically and legally is an important part of the scicomm and sciart process.
To help you do this, this article series is comprised of several sections: Definitions and Tips (covered today). As the series continues, we’ll also talk about Top Image Sources, How to find the creator/copyright holder of an image you want to use, Working with an Illustrator, and Commissioning Custom Images.
A: DEFINITIONS
Let’s start with a few definitions, so we’re all on the same page.
1. First, this article is written from the point of view of image creators and users operating in the U.S. And, while many other companies have related (and sometimes similar) legislation and legal precedents, it is important to know and follow the legal requirements of the jurisdiction in which you operate.
2. Copyrights
According to the 1976 U.S. Copyright Law, “A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.”
3. License
A license gives you the right to reproduce an image. Subject to a range of constraints agreed upon by the image creator (or copyright holder) and the individual or entity wishing to reproduce the image. Reproduction licenses are often obtained by purchase, and as such, represent a valuable and essential means of monetizing visual work of an image creator.
Note that many images are licensed by their copyright holders for free use under a range of simple conditions, with Creative Commons being the most prominent such licensing system.
4. Image Reproduction
Reproducing an image in any format apart from it’s original format, including photocopying, scanning, taking a screenshot, etc.; using an image in any format outside it’s original, including for presentations in-person or digitally, in videos, in posters, etc., etc., etc.
5. Derivative Works
According to the U.S. Copyright Office, “A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works.”
B: IMAGE USE TIPS
1. Use or create your own images.
In this best-case scenario you have all the rights, and you can attribute or not as you like. See ecologist/photographer Jonny Armstrong’s advice re planning for your own photos:
@commnatural @BrandonGellis @bballengee think about images to tell your story earlier in process, don't wait last minute — Jonny Armstrong (@jonny5armstrong) August 03, 2016
@commnatural 1. Start with the obvious: pic/vid of focal critter, habitat, you in the field -- easy to focus on data collection and forget — Jonny Armstrong (@jonny5armstrong) August 03, 2016
@commnatural 2. Think of the visual that would represent your hypothesis/results or depict the phenomenon you are studying, but really... — Jonny Armstrong (@jonny5armstrong) August 03, 2016
@commnatural 3. I think most scientists (including myself) need to just take more pics/vids in the field and write photogs into grants. — Jonny Armstrong (@jonny5armstrong) August 03, 2016
But, be aware that employers and institutions may have rules governing ownership and reproduction rights for images you produced/created on the job. Look in your contract for “work for hire” clauses to be sure. See the U.S. Copyright Office and Wikipedia explanations for an overview of work for hire issues.
2. Can’t afford to pay for images? Use public domain images or images licensed through appropriate (to your intended use) Creative Commons terms.
There are lots of great sources of public domain images.
Note: If you see a prompt to subscribe to keep reading, you can just subscribe for free.
Some great sources of public domain images are the U.S. Government, including the Library of Congress; the Getty Museum and numerous other museums; Wikimedia Commons; and a fair number of image creators themselves. We’ll get into this in more detail in a future article dealing with Top Image Sources.
3. When you locate an image you’d like to use, be sure to find the image creator and ask for permission.
If you identify images, through online or off-line sources, which you would like to use, contact the image creator or copyrights holder, and ask for permission to reproduce the images.
Science communication specialist Kirk Englehardt states it plainly:
RT @kirkenglehardt: @commnatural when in doubt, ask who owns the picture. Contact the owner of the site where you found it, or the author o… — Dr. Paige Jarreau (@FromTheLabBench) August 03, 2016
Stanford University Libraries provides a succinct-but-thorough overview of seeking reproduction permission and the factors you may need to address in the licensing process.
In brief, be prepared to articulate exactly how and why you want to reproduce the image.
The US Copyright Office also provides a handy fact sheet to help you, and Google offers a Reverse Image Search function.
And, if you cannot find the creator (say an image is widely reproduced and the original creator/use is unclear), be prepared to use a different image.
4. Be respectful of image creators.
While many image creators will happily let you use their work without payment, others (especially those for whom image creation is a profession and a source of livelihood) may not – and their asking for a fee is perfectly appropriate and entirely reasonable. It is just like architects, doctors, and scientists, who all deserve to be paid for their work.
Ask, and respect the image creator’s choice! And of course it is your choice, when an image creator asks for a fee, to use another image instead. As Stephen B. Heard puts it, “A professional should not be offended when you decline to purchase.”
If you are hoping to use images produced by a professional image creator, keep in mind that this applies equally to existing work and original work that you may commission. See the Center for the Protection of Intellectual Property’s white paper: “Copyright Principles and Priorities to Foster a Creative Digital Marketplace” for more info.
5. Keep in mind is the difference in funding streams between illustration/graphic design/photography and most science labs.
Many professional image creators cannot afford to collaborate if that means you expect them to do their work for free. In particular self-employed image creators usually do not have a baseline salary coming in from other sources. So, rather than asking for a break right at the outset, let the image creator offer a discount or pro bono services, if doing so is within their budget or operating procedures.
As science illustrator Jen Burgess reminds us, commissioning images can be feasible even on a tight budget.
RT @jenburgessart: @FromTheLabBench @commnatural Even getting original sci-art can be budget-friendly. Just pitch your idea & budget to you… — Dr. Paige Jarreau (@FromTheLabBench) August 03, 20166. Knowing your budget and being willing to discuss it, at the outset, is hugely appreciated by image creators.
Similarly, image creators appreciate you being aware and considerate of the amount of time and expertise required to produce images compelling enough that you want to use them. I will share more on the subject of commissioning images and working with an illustrator in a future article.
6. Know and respect the difference between authorization + attribution vs. merely identifying an image source or creator.
Providing image credit, even full name, links, etc. is not the same as having received permission to use the image in the first place. Ask first, receive permission (which may involve paying licensing fees), then attribute. And do attribute.
@TalkScienceToMe has a great post on #imagereproduction: talksciencetome.com/image-permissi…. "If it's worth using, it's worth asking." — CommNatural/BGMerkle (@commnatural) August 03, 2016
7. “Image by Google” isn’t good enough.
The internet does not take photos or create illustrations and videos. The internet is only a repository, just like a library doesn’t write books but contains many.* Similarly, just because an image is online does not mean it is free for the taking. Quite the contrary – many images are online because their creators want people to see them, not steal them.
Saying “photo by Google” or “photo from Wikipedia” is not sufficient, not accurate, and not legal. That’s the equivalent of providing a citation credit to bioRxiv or Web of Science, rather than crediting the study’s authors and the journal in which they published. Not surprisingly, even Nature is pondering the difference between public accessibility and reproduction rights:
"Simply posting a data set publicly doesn’t mean others can legally republish it." go.nature.com/2aQTkTO https://t.co/QhKvngvEf3 — Nature News&Comment (@NatureNews) August 03, 2016
Alex Wild has a great article on how to credit Wikimedia Commons photos.* You can also reference Creative Commons’ great “Best Practices for Attribution” wiki for examples of how to do attribution well.
8. Don’t assume your intended use is covered by the “fair use” principle.
Even educational and conference-related uses are subject to, and constrained by, U.S. copyright laws and legal precedents. Again, keep in mind that these are the conditions for image use in the U.S. Other countries may vary. While many other countries have related (and sometimes similar) legislation and legal precedents, it is important to know and follow the legal requirements of the jurisdiction in which you operate.
That being said, the U.S. Copyright Office notes: “There is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.”
U.S. Copyright Office Circular 21 deals with fair use in educational/library settings, while Circular 92 (the 2011 edition of the entire copyright law text) includes sections on general fair use outside educational settings. Furthermore, in 1998, the Consortium of College and University Media Centers distributed a set of recommendations regarding “Fair Use Guidelines in Educational Multimedia.” These are not legal guidelines, but rather best practice recommendations. Of particular note is a clause on page 4 which deals with the difference between reproduction for use within a classroom setting vs. reproduction that has possibility of being more broadly disseminated.
The recommendation follows: “Educators and students are advised to note that if there is a possibility that their own educational multimedia program incorporating copyrighted works under fair use could later result in either a widely disseminated or a commercial product, it is strongly recommended that they take steps to obtain permissions during the development process for all copyrighted portions rather than waiting until after completion of the program.”
Following up on these recommendations, guidelines were discussed during a series of Conferences on Fair Use convened in the 1990s. These guidelines were not formally endorsed, formalized, ratified, or in any way codified into law. However, they do indicate reproducing copyrighted images for conferences was a use considered by conference delegates.
In the May 1998 “Final Report to the Commissioner on the Conclusion of the Conference on Fair Use” (CONFU) the following recommendation dealt with conference-related image use: “3.2 Use of Images for Peer Conferences. Educators, scholars, and students may use or display digital images in connection with lectures or presentations in their fields, including uses at non-commercial professional development seminars, workshops, and conferences where educators meet to discuss issues relevant to their disciplines or present works they created for educational purposes in the course of research, study, or teaching.”
Again, note that these are proposed guidelines that were not formalized, ratified, or in any way codified into law. However, they do suggest that reproducing copyrighted images for conferences and other types of non-commercial educational and scholarly presentations is what some institutions (not necessarily image creators) might consider fair use.
While the 1998 CONFU report may explain current common behavior regarding image reproduction in presentations, it still does not exempt those wishing to reproduce copyrighted images from the ethical considerations (requesting approval, providing attribution, paying, etc.) described above.
Furthermore, sections of the CONFU report make related recommendations which include only making such reproductions available within an institution, protecting them via passwords on internal networks, and a range of related precautions for ensuring the presentation files/slides which include copyrighted images are not deliberately or inadvertently published online. Dr. Paige Jarreau, a science communication researcher, explains how she handles these considerations:
.@commnatural presenters often use copyrighted images. It might be OK in education settings, BUT if slides are going online then it's not! — Dr. Paige Jarreau (@FromTheLabBench) August 03, 2016
.@commnatural I recently gave a talk and used copyrighted images for education. When organizers asked for my slides to put online... (1/2) — Dr. Paige Jarreau (@FromTheLabBench) August 03, 2016
.@commnatural ... I switched out my images for Creative Commons alternatives. With Flickr now, there's no excuse. (2/2) — Dr. Paige Jarreau (@FromTheLabBench) August 03, 2016
The next article in this series, Top Image Sources, focuses on where to get great images for free.
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NOTES
[1] Many thanks to Stephen B. Heard, whose insightful comments on an earlier draft ensured this version was more reader-friendly. Thanks, also, to Paige Jarreau, Glendon Mellow, Kirk Englehardt, Jonny Armstrong, and others who chimed in during the initial Twitter conversations that inspired this article.
[2] *Megan Duffy pointed out on Twitter that Alex Wild (an entomologist and insect photographer with generous track record of discussing visual copyright infringement issues on his website, at Scientific American online, and elsewhere) used a similar library analogy (likely long before I did, as he’s been writing about this subject longer). I’ve found great article of his on Scientific American, which contains a library analogy which might be the one Megan was thinking of. It’s a fantastic article showing the difference between correct attribution and incorrect attribution: How to credit images found in the Wikimedia Commons.
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