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Fair Use Question of the Month: Digitizing Historical Photographs

Deer River saw mill. 1910 Collections Online Minnesota Historical SocietyDear CMSI:

I work in a small local historical society, in a place that once was a booming timber mill and paper mill town. I'd like to put some photographs we have online, both to show people some of the holdings we have, and also to get help in identifying people and places in the photos. But we don't know who took the photos, or who would hold copyright now (and even sometimes when the photo was taken). So we can't ask permission. Could I post them under fair use?

Sincerely,

Melissa

Dear Melissa,

Statement of Best Practices in Fair Use of Orphan Works for Libraries & ArchivesYes, you can definitely think about how to apply fair use as you create digital access to your holdings. The new Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives asserts,

"Memory institution professionals believed that providing access to their collections was the ultimate goal of all institutional activities, including preservation. They believed that fair use was available to them for this purpose, but they also recognized both the idiosyncrasies of particular collections, and a common set of issues that a responsible professional must consider before allowing access. They believed that certain best practices for acquisition, cataloging, and management were important to the responsible exercise of their fair use right."

You will, however, want to read this document with care, since memory institution professionals identified seven areas of best practices beyond fair use, all of which could affect a fair use decision: Acquisition, Clearances, Selective Exclusions from Access, Curation, Conditions on Availability, Dialogue with the Public, and Providing Copies to Members of the Public.