From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Can I use clip art or photographs that I find on the internet in the newspaper? What should I consider before I use these items? 

A: There is no simple answer to this question. Copyright issues are complex, and it is often very difficult to give "definite" answers on whether you can use a particular piece of work that you find on the Internet. As a general rule, however, materials on the Internet are protected by copyright in the same way that materials printed in books (or any other tangible medium) are protected. As with other works, the copyright status of each item must be individually reviewed. 

On a web site, that can be easier said than done. If the work is identified as being protected by copyright, you should assume that it is. Even when a copyright symbol is not used, however, a piece of work on a web site may be, and often is, protected by copyright. An original work is subject to copyright protection the moment it is created in a tangible medium (the Internet is a tangible medium). The owner does not need to use the copyright symbol; nor does he or she have to register the work with the U.S. Copyright Office (although there are definite advantages to doing so).

If something is copyrighted, it cannot be reproduced without permission of the copyright owner, unless some exception applies under the applicable laws. 

Fair Use

The most significant exception for newspaper purposes is the doctrine of "fair use." Fair use permits the limited use of copyrighted works for educational purposes, criticism, comment, research and news reporting. Unfortunately, there are no "hard and fast" rules for determining when a particular use is a "fair use." The factors that are considered in determining whether a use is fair or not, include the purpose and character of the use, the nature of the work, the amount of the work used in relation to the whole and the effect that the use has on the market value of the work.

There is no question that newspapers certainly enjoy some amount of protection when they write news stories that include parts of copyrighted materials. Whether or not the use of a copyrighted work by a non-owner would be considered a "fair use" is not always an easy call, however. For example, someone writing a review of a book should be able to include a limited number of passages from that book. In contrast, where an author copied more than half of an unpublished manuscript, a court found that the use was not "fair," because too much was used and the work had not yet been published. 

The safest way to use a copyrighted work is to get permission from the copyright holder. This is (obviously) often at a cost. If you want to use something on the Internet, and you do not believe that your use would be a "fair" one, look for copyright information on the site itself. If you can't find anything, try to find contact information for the website operator or entity. 

Copyright duration issues

Certain works (both on the Internet and elsewhere) are in the public domain. These include many of the well-known Christmas songs, and some old artwork (e.g., works done by Rembrandt, Da Vinci, etc). 

Any time that you think that something may be in the public domain, you should contact a lawyer to confirm that you are correct. Even though the work of art (such as a Rembrandt) is in the public domain, a photograph of the work (especially one that changes the original piece) may still be protected by copyright.

The rules with respect to copyright duration are very complicated. Anything created in or after 1978, by a named individual, is protected for the life of the author plus 70 years. The rules for works that were created prior to 1978 depend, among other things, on whether the work was published, when the author died, etc. You should assume that works are protected for at least 100 years from creation, but copyright protection can continue much longer than this, depending upon the circumstances.