Narrator Pamela Almand recently wrote to me about images in a public domain book from a deceased author that she plans to narrate and produce as an audiobook. She kindly gave me permission to re-publish her question here so that more people can benefit from this discussion.

I have a question from you since you’ve done a bunch of these and are the acclaimed guru! I love the photographs included in the book and wonder if you’ve ever searched rights for illustrations or if, by virtue of them being in a PD title, they are considered PD also. I would love to add a downloadable pdf of the photos but don’t really know if that is allowed. If you can point me toward a resource I’d really appreciate it!

As you might imagine, this seemingly easy question has a complicated answer.

I’ll break it down in 3 parts.

 

The Law

Books and pictures published in or before 1927 are in the public domain. Each 1 January, a new year’s worth of books enter the public domain.

In Pam’s case, the book was published in 1928. Using the links on this page, she determined the copyright wasn’t renewed, so the book is in the public domain.

However, the copyright owner(s) of many of the photographs in the book were different from the author, who was the copyright owner of the text. We don’t know the original publication dates of the images. As a result, it’s possible some of the pictures in the book remain under copyright.

The picture caption/attribution would indicate the copyright owner with language like “used by permission” or even a copyright symbol. If it doesn’t include such verbiage next to the picture or in a list elsewhere in the book, like on the copyright page or in the Acknowledgements, to indicate different ownership of the picture, the image would be the author’s and therefore could be included in her text copyright.

For instance, a page of plane maneuver pictures in Pam’s book states “Courtesy Standard Oil Company of Indiana” at the bottom.

Copyright owners maintain the separate rights to control copies and derivative products. You’d need the copyright owner’s permission to redistribute their image in your PDF. Technically, they could have given permission for the picture to appear in the printed book but could refuse your request to redistribute a copy in a PDF to accompany the audiobook.

In the booklet Managing Intellectual Property in the Book Publishing Industry published by the World Intellectual Property Organization (WIPO), we find the crux of the problem:

Rights owners of photographs will normally give a non-exclusive license for reproduction of the picture. This means it can be used once for the purpose and in the position requested, and may not even cover reprints (in other words, permission may need to be obtained every time the book is reprinted). So, if a publisher approaches a third party for permission to reproduce a photograph, he should expect the right granted to be quite limited. If later he wants to include that same photograph in another title or in a new edition (like a paperback), or he decides to change its size and put it on the cover, he will need to seek a fresh permission.

From a practical standpoint, the copyright owner may have passed away or, in the case of a company, no longer exist, though that point doesn’t give us permission to stop looking for them.

The images in question are illustrations and photographs that depict historical aircraft and various people associated with flying.

Going back to the plane maneuver pictures mentioned above, a quick Google search shows me that Standard Oil Company of Indiana merged with American Oil in 1925. They changed to the Amoco name in 1985, and in the 90s, Amoco merged with BP. Even if one could find the correct person in BP’s labyrinth to contact for permission, I think they probably would not answer.

The WIPO document addresses the scenarios of copyright owners who can’t be found and those who can be found but don’t respond:

Works should never be used without permission (right owner authorization, legal permission) in one form or another. In some cases when the excerpt is very small or very old (in other words, it is not sure whether or not it is still in copyright), or if it was not possible to track down the rights owner, publishers proceed with publication. In these unfortunate cases if several failed attempts have been made to trace the rights owner, evidence thereof is often collected (copies of letters, envelopes returned with messages such as ‘gone away’ or ‘not known’, a brief log of e-mails or phone calls that did not reach their destination, with a view to improving the legal standing of the publisher. These cases are different from those where the identity and location of the author are known and established, but he just chooses not to respond to the repeated requests. A court would regard this second example as tantamount to a refusal.

 

What About Fair Use?

While I am not a lawyer, it’s tempting to make an argument for including all of the pictures in the book in the PDF to accompany the audiobook. In the extremely unlikely event a copyright owner challenged your usage of a picture, you could either remove the picture from the PDF or cite the fair usage standard of copyright.

Fair Use rests on 4 subjective tests, which are, as quoted from the Stanford article linked above:

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken
• the effect of the use upon the potential market or future value of the copyrighted work

The Stanford article also states:

Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works.

The WIPO document linked in the previous section advises us:

It must be borne in mind too, that there is no fair dealing precedent for illustration or web content – the ruling generally applies only to text. One of the reasons for this is that by reproducing a photograph or a picture, a whole work, not a part of it, is being reproduced.

 

How to Proceed

In this particular case, I’d create a supplemental PDF using all of the author’s pictures from the book, assuming the scanned images are suitable to reprint. I’d substitute images that are known to be public domain for any pictures potentially still under copyright.

As an example, an image of the Pan Am Clipper Ship is marked “Courtesy of Pan Am Airlines”, so it would have been the company’s copyrighted picture at the time the book was published. You could download and use the large JPG of this image from the Library of Congress in its place. The LoC is a great place to find public domain images.

This guide explains how to create the PDF. Your distributor(s) should have instructions for attaching the PDF with your recordings. For example, you would follow guidance on this page in the ACX help section or this page in the Findaway Voices support area.

 

Check out this article, which lists a number of sites where you can find public domain images.

Also, before you use an image of a person, be sure to read Right of Publicity as you could still run afoul of the law even with a public domain picture.