RE: Using Celebrity Photos in Educational Module

["Harper, Georgia K" <gharper@xxxxxxxxxxxxxxxxx>]

See below for comments and suggestions about your questions.

G


Georgia Harper
Scholarly Communications Advisor
University of Texas at Austin Libraries
512.495.4653; 512.971.4325 (c)

-----Original Message-----
From: Elizabeth J. Pyatt [mailto:ejp10@xxxxxxx]
Sent: Thursday, February 07, 2008 12:11 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Using Celebrity Photos in Educational Module

Hello:

I have a copyright question about using celebrity photos in an
educational
module, I'm hoping someone can clear up.

Our university has a service where you can download educational modules
free
for non-commercial use, but of course we want everything to be legal.

The module I'm currently working one is about famous African-American
musicians and composers. The origininal in-house module has photos, but
does
not document sources (this version is housed in a password protected
site).

But now I'm trying to find alternate images if I can.

 [Georgia K Harper]
There's an implication here that you plan to make some use *other than a
nonprofit educational use.* If you were simply making a nonprofit
educational use, I'm not sure why you would be worried about using
photos of famous musicians in an educational module. Such a use strikes
me as classic fair use -- commentary, etc. If there were an efficient
permission mechanism for images, that would be a different matter (as
there is for text). But as it is, for in-house use, behind secure
servers, etc. I would be comfortable with a fair use argument for these
types of images. So, I'm going to assume you are making some other use,
such as a commercial use of some sort.

 In one case, I found a
lovely photo of Patti Labelle taken by NASA at a NASA event.
What are the rules for this kind of situation? I know federal government
usually means public domain, but what about celebrities?

[Georgia K Harper]
You are correct that a NASA photo is in the pd because the federal
government does not claim a copyright in its works (works created by its
employees in the scope of their employment). If you are planning to make
money from this endeavor, it might be a good idea to do as Beth Ellen
suggests and explore the rights of publicity, but for a nonprofit
internal educational use, I wouldn't anticipate that an educational work
that does not take advantage of the celebrity's image for its own
commercial advantage would pose a problem. Rights of publicity are
different from state to state, and I'm not an expert, but I do think
that, as economic rights, they usually involve an unfair exploitation of
the good will (fame) associated with the celebrity's image. An
educational module for internal use just wouldn't quite fit that bill,
from my perspective.

Another question is if I can use older Library of Congress photos of
artists
like Billie Holliday or Duke Ellington without prior consent

[Georgia K Harper]
Anything published before 1923 is in the public domain and you don't
need permission for copyright purposes. Publicity rights can survive the
death of the celebrity, and the laws vary from state to state, so the
answer to that question goes back to your intended use. If it could be
deemed to exploit the fame for your own commercial advantage, it might
offend rights of publicity. But if its nonprofit educational use, I
doubt that it would.

Any insights would be appreciated.

Thanks

Elizabeth Pyatt

P.S. A second question is that if I find a digital photo where the
original
dates from 1911, has it entered "public domain" enough so that it can be
safely used without prior consent?

[Georgia K Harper]
"dates from 1911" isn't clear whether you mean published in 1911 or
taken in 1911. That matters because if it was published in 1911, the
answer is yes, it's pd. If it was taken in 1911 (but not published), the
answer depends on the death date of the photographer, because the term
for unpublished works is life of the author plus 70 years. So published?
In pd before 1923. Not published? In pd 70 years after death of
photographer.

--
=-=-=-=-=-=-=-=-=-=-=-=-=
Elizabeth J. Pyatt, Ph.D.
Instructional Designer
Education Technology Services, TLT/ITS
Penn State University
ejp10@xxxxxxx, (814) 865-0805 or (814) 865-2030 (Main Office)

210 Rider Building II
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