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Almost finish with writing a business book - and am going through some of the illustrations to make sure I have copyright permissions and attributions. Here's a problem I've encountered:

There are a few photos that are from World War 2 era (battlefield photos in France, for instance), that are generally very common on the web - and I cannot find any attribution - let alone license information for these photos. Another photo or two is very specific (Cargo Cults) and the few photos available also have no source or attribution - but are used just about everywhere.

I'm pretty good at searching, and diving deep. I've also checked AP, Getty images, other commercial sites and also the Smithsonian archives. Nothing.

So - what do I do? I don't want to get sued after the book is published, or charged extortion after-the-fact, or worse, have to reprint the book without the photos.

REWORDING the main question for clarity (and so others don't think I am asking for legal advice:

My question is not generally not "how can I search online to find the original image".

The question is - how can I properly use and attribute a photo inside my book - when no official attribution or copyright can be found?

Note: 1) this is a writer's question tagged under the "copyright" tag. in all of stack exchange there is no place more appropriate than here.

migrated from writers.stackexchange.com Oct 27 '16 at 18:03

This question came from our site for the craft of professional writing, including fiction, non-fiction, technical, scholarly, and commercial writing.

  • Not exactly ... the question is "how should a writer cite a photo properly were they cannot find an attribution"... Oh ... and this is under the Tag "copyright" ... Almost every writing question under this tag is going to have some implied legal connection. – CJ Cornell Oct 25 '16 at 20:48
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    IANAL, but attribution has nothing to do with copyright. Using a copyrighted work is a copyright violation whether you cite the source or not. Citation may be used to absolve yourself of plagiarism, which is the academic sin of passing off someone else's work as your own. It has no effect on copyright whatsoever. A license of copyright will likely include the requirement to cite your source in the desired form. But it is obtaining the license, not making the citation, that is required by law. – mbakeranalecta Oct 25 '16 at 21:08
  • yes, all true and academic for 99% if the common questions in this category. But my question is ... what does one do with an older photo that has no source to be found - and no copyright holder of record (after a deliberate attempt to find one). I am posting this to see if someone here has experience with this situation with one of their own books. (if you have not run into this situation, that's fine - but there;s no need to stop someone else from seeing the question, who might know the answer. – CJ Cornell Oct 26 '16 at 0:53
  • "in all of stack exchange there is no place more appropriate than here" But that might just mean Stack Exchange isn't the right place at all... – Spagirl Oct 26 '16 at 11:51
  • Up until now, question about copyright such as this one have been considered on topic. Personally, I think that we, as legal laypeople, cannot offer definite answers so that the person asking will have to ask a lawyer anyway, but current practice is to accept these questions as on topic. If anyone disagrees with this practice, you need to discuss this on meta. – user5289 Oct 27 '16 at 13:31
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The fact that you haven't managed to determine who holds the copyright does not per se mean that you can't be sued for infringement. Given the age of the items, it is possible that they are no longer protected, as specified in 17 USC 304 depending on the country where the right exists and details of registration.

Assuming that the copyright is still valid and the rights-holder sues you, then you might attempt a fair-use defense. This Q&A summarizes the legal elements of that defense. It's unclear how you would fare w.r.t. the purpose and character element: being free and educational is seen as good. The nature of the work favors fair use (news item), but the extent element doesn't ("extent" could be favorable if you take only the eyebrows, but you're basically copying the whole thing). The 'effect on market' concern probably favors fair use, since the use wouldn't apparently undermine a market for the original work (indeed, there may be no such market, but it's never safe to assume). And finally, there's the mystery factor of "transformativeness". The fair-use index run by the copyright office can help, since you can read summaries of cases where fair use was found versus not found, to try and determine what constitutes "fair use".

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Have you tried searching by image?

https://www.google.com/intl/es419/insidesearch/features/images/searchbyimage.html

  • That was the very first thing I did .... Like I said - assume my search was exhaustive (on the web)... So my question is - how does one legally use a photo that has no official attribution or copyright to be found? – CJ Cornell Oct 25 '16 at 20:21
  • That is a legal question, which is really off topic here. I'd suggest you ask on a legal forum, or, better yet, hire a copyright lawyer. – mbakeranalecta Oct 25 '16 at 20:26
  • It's not off topic. it's a question about copyright (hence the tag "copyright". – CJ Cornell Oct 25 '16 at 20:50
  • @CJCornell Sorry, it is off-topic. Just because the item you're asking about is in a novel doesn't make it a writing question. You could be doing a coffee-table book of WWII photography, and it wouldn't be on-topic on Graphic Design or Photography SE either (that I know of). It's a good question, but ultimately you're saying "I found this image, and I want to reproduce it, but I can't find the creator to procure reproduction rights legally. How do I proceed?" That's a legal question. – Lauren Ipsum Oct 26 '16 at 9:56
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It sounds as if you are asking 2 questions:

  1. Is it legal to put it in a book and
  2. How do I cite or reference this photo of unknown provenance on the web?

For 1)it probably counts as fair use to have a small reduced quality (or reduced size) image in the book itself:

https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html

http://fairuse.stanford.edu/charts-and-tools/#digital_images

http://librarycopyright.net/resources/fairuse/

For 2), the answer is surprisingly simple. You can host the image on a web page you run, and then remove it if anyone comes complaining. (That is how a lot of websites and blogs operate; promise to take it down if asked).

Another option is to use a service like Perma.cc or webcite to create a permanent/enduring URL to a third party web page which you can update over time if the web reference goes bad.

Finally, I had a situation which was roughly analogous to this. I published a fiction ebook about old cars, and as an interesting diversion, I scoured the web for photographs of many of the cars referenced in the ebook. Ideally I would have liked to get clearances for the photos so they could be included in the book. I quickly realized that this was impossible. Some photos were on wikipedia, but I often needed a specific color of car. The best way to do this was to google the car's year and model and choose one of several photos used for ebay auctions, antique car events, etc.... Many of those photos were improperly cited and web pages often lacked contact information.

(The URL I made is here: http://www.ghostlypopulations.com/2012/02/the-cars-of-hanger-stout-awake/ ).

I had a lot of fun making this photo page. I realized that standards for copyright infringement differ for blogs and ebooks. I did this page just on a lark. But if I would want it for the book itself, I would have been a lot more diligent about getting permissions.

  • Thanks for chiming in! I was considering Fair Use; in this case it seems likely - but I wanted to make sure (and still -the attribution is tricky). This is for a printed book (and kindle etc) .. but from my understanding there is no difference in copyright rules web vs print. And I am 99% sure that the "I'll remove the photo from the site, if someone claims ownership", while practically correct, is legally incorrect. Even after you've taken it down, you would still be liable for any damages if the owner decided to sue. If fair use (an no apparent owner) - how do you cite it? – CJ Cornell Oct 26 '16 at 16:52
  • I'm not disagreeing that it's legally incorrect to post on your website until someone files a takedown request. But the web page can be noncommercial -- and you can explain that you were unable to locate the copyright owner. If you can demonstrate due diligence and your version of the image isn't the only one available on the web, I doubt that significant damages can be demonstrated. Even if so, practically speaking they're not going to sue if you immediately take down 1 image. – idiotprogrammer Oct 26 '16 at 20:06
  • Actually I found some info that sheds some light on all this. Apparently there's a term for this Orphan Works. en.wikipedia.org/wiki/Orphan_works_in_the_United_States "An orphan work is a copyrighted work whose owner is impossible to identify or contact. This inability to request permission from the copyright owner often means orphan works cannot be used in new works nor digitized, except when fair use exceptions apply" – CJ Cornell Oct 26 '16 at 20:46

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