Clearing Permissions to Use Photographic Images

June 21, 2011

I recently reviewed a manuscript of a non-fiction, semi-scholarly work analyzing images of historical prophesy (tarot) cards. The author explained that she wanted to illustrate her book with copies of cards and photographs of ancient artifacts to demonstrate thematic links to the images on the cards. The cards are mostly of ancient provenance, although some are more recently created modern interpretations of prophetic images. Whether ancient or modern, art and artifacts are owned by museums and cultural institutions who control rights to their collections.

What permission does an author need to use images of cards and photographs of ancient artifacts in cultural collections? More recently created cards are works of art protected by copyright. Not so with ancient cards and works of art! In one sense these are in the public domain, but they are nevertheless protected by ownership rights against commercial exploitation. Can you copy images from a catalogue or a magazine or a newspaper to illustrate your book without having to pay anything to anybody? With respect to the artifacts in cultural collections, the author explained that she had found photographs on the Internet which she intended to download and use in her book. She has also (despite ubiquitous "no photographing" admonitions in cultural institutions) taken some photographs of museum holdings on the sly with a digital camera and wonders whether there are any constraints against using these images.

Images are not for the taking even if not protected by copyright. So, for example, although an author may use her own unauthorized photographs their low resolution makes them unsuitable for publication. Publishers will require her to license high resolution prints which can only be obtained from the museums and cultural institutions who own the originals. In these circumstances, permission is granted in exchange for a "use fee" under an agreement that spells out the author's limitations of use. Optimally for the creator of a semi- or even scholarly book a "use fee" may be no more than the cost to the institution of creating a reproducible high definition image. The amount of the fee, however, is variable. It most likely depends upon the nature of the work and its intended audience and the territories in which it will be sold. It may also depend on the location of the image in the work – cover art is likely to be more expensive than the same art on an interior page – and requested size (larger images cost more).

Because a publisher will not allow itself to be exposed to any violation of a third party's intellectual property or contract rights it will demand that all permissions be properly cleared and warranted. Clearing permissions is a time consuming and sometimes costly undertaking. An author, particularly one seeking a mainstream publisher will find that the publisher will require her to obtain permissions. Most likely the task and cost will fall to the author to be paid out of the advance. Publishers do not ordinarily agree to pay for permissions although they may agree to share in the cost of obtaining new illustrations, which necessarily involves contracts with illustrators and photographers and raises another level of copyright ownership.