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ESC Copyright Information Website: Copyright of Images

Copyright of Images

Images are copyrighted the same as text works, but there are some special conditions that pertain to using images in higher education.

First ask these questions:

  1. Is the image in the public domain? If yes, use the image. If no, go to 2.
  2. Do I own the copyright of this image? If yes, use the image. If no, go to 3.
  3. Is this image licensed under a Creative Commons license that allows what I want to do with it? If yes, use the image, following the terms of the license. If no, go to 4.
  4. Is this use covered under a copyright exemption...
    • Educational Use - in a face to face classroom, only displaying it and not making copies, and it's for educational purposes? 
    • TEACH Act - online course, only using it for educational purposes, and it's specifically marked with its copyright and attribution information?
    • Strong case for Fair Use, such as a Transformative Work?
      If yes, use the image. If no, go to 5. 
  5. Do I have a license to use this image in this way...
    • Because I got it from a library database whose license agreement allows this kind of use? (Ask A Librarian!)
    • Because I downloaded it from a website with a terms of use/license agreement that allows this kind of use?
    • Because I specifically got a license to use this image for this kind of use from the copyright owner?
      If yes, use the image according to the terms of the license. If no, then you need to either get permission or find another image.

Public Domain

Images from 1922 1923 (as of 2020) and before (if created in the US) or 1889 and before (if created elsewhere) are in the Public Domain and may be used freely.

Images published by the US federal government and its agencies are all in the public domain. This includes all of NASA's space and climate photography, biological images from the CDC, the Federal Works Progress Administration photographs, etc. 

Your Own Images

If you have created an image, you own the copyright of it. The SUNY Board of Trustees guarantees the right of faculty and professional staff to own the copyright of their academic content, unless they create it as a work for hire under a letter of agreement. For our purposes, your creativity applied in the form of photography, graphic design, art or even just a quick infographic, gives you ownership of its copyright. You may use it in your courses, both online and face to face. The college retains a limited right to use your copyrighted materials for academic purposes internally (for example, if a course you developed gets revised after you retire) but you still retain the copyright. You may also license it under the Creative Commons to encourage further reuse, both internally and externally. 

However, if your image was published in an article whose copyright now belongs to the journal (check your agreement) then you will need permission from the journal to reuse your own image. 

Your Students' Images

As with all other content that learners create, they own the copyright of their images. If you want to use a student's image in any way or for any reason other than to grade them and give feedback, you must get permission. Students should be made aware that their work, and the work of their peers, is copyrighted and what that means for them.  

Creative Commons

Vast numbers of images have been put into the Creative Commons, and can be used without asking permission or paying royalties, as long as you abide by the terms of the given Creative Commons license. At minimum, this means giving proper attribution. 

Best Practices for Attribution of Creative Commons Works

You can find them all over the web - Google even has an Advanced Search feature that lets you search by license permissions. There are also collections of them at:

A note about images found in Open Content

Check the captions and the citations of the image within the piece of Open Content, to be sure of the original source of the image. Images in Open Content often come from other sources, which may themselves be Open Content, or they may belong to a different copyright owner who gave permission to the creators of the Open Content, which does not extend to further remixing by you. Always go back to the original source for both attribution and permission to use. 

Educational Use Exemption

The Educational Use exemption to US copyright law specifically allows the display of images in the face to face classroom for purposes related to curriculum and instruction. 

It does not allow making copies of images to distribute to learners, and it does not apply to online learning or creating OER.

TEACH Act

Empire State College faculty and developers may take advantage of the TEACH Act, which allows the display of images in the Learning Management System (Moodle courses) for purposes related to curriculum and instruction. 

They must be captioned with the copyright information and attribution.

The TEACH Act does not allow the use of images for decorative or branding purposes, and it does not apply to blogs, web sites, email, social media, or any online platform other than a course in the LMS. You cannot use the TEACH Act if you are creating OER.

Fair Use

Fair Use is tricky to apply with images, because generally you use the entire image, which is a mark against the "amount and substantiality" factor in your Four Factors decision. However, you can always use an image if it is a transformative work. To be a transformative work, it must

  1. have a completely different purpose, and
  2. not be substitutable for the original.
    On the web, this means a person can't just save or print what you put up instead of getting a copy legitimately.
    You might reduce but not eliminate substitutability by making your version smaller or lower resolution, using a watermark, or disabling right-click, depending on how you want your copy of the image to be used. For example, your students might need right-click capability in order to print an image to mark it up, or they might need a large, full resolution image to examine in an art or science course.

Stock Photo and Clip Art Sites

There are many stock photo web sites, some free, some subscription, and some where you pay image by image. In all cases, you must read the license for the image to know how you are permitted ot use it. Even if it is a free stock photo site, that just means you don't have to pay them money to access the image. There may be restrictions on how you may use the image. 

There are some sites that say their images are free for personal use (which does not permit classroom use) or free for educational use. If you are using free for educational use images in a face to face classroom or an online course, that is fine.

Even if an image is labeled as free for educational use, you should still ask for permission if you want to use these images in creating an OER.

Images On The Web

Even unattributed images with no copyright information are still copyrighted. You must ask the copyright owner's permission to use them. In some cases, they are being used illegally, so the owner of the web site is not the image's copyright owner. Sometimes you can find the original posting and track down the copyright owner by doing a reverse image search.