Can I Legally Use Online Photos in my Family History?

Copyright, Etiquette & Ethics of Using Online Photos

Are old family photos copyright protected?
Getty / Jill Ferry

Genealogists love images—photos of their ancestors, historical maps, digitized documents, historic photos of places and events... But can we legally use the fabulous photos that we find online in a published family history? A genealogy blog? A research report? What if we only plan to distribute the document that we are creating to a few family members, or are not planning to publish for profit? Does that make a difference?

The best way to ensure that you're safely using an image is to create it yourself. Visit the cemetery where your ancestors are buried, or the house where they used to live, and take your own photos. And, in case you're wondering, taking a photo of a copyrighted photograph doesn't count!

We don't, however, always have the luxury of creating our own images. Historical photographs, especially of people and places that are no longer with us, are just too important a part of the story to want to leave out. But how do we find and identify photos that we can legally use to enhance our family histories?

Consideration #1: Is it protected by copyright?

The excuse that a photo we've found online doesn't have a copyright notice doesn't count. In the United States, most works first published after March 1, 1989, are not required to provide notice of copyright. There are also different copyright laws in different countries covering different time periods.

To be safe, assume that every image you find online is copyrighted unless you can prove otherwise.

It's also not okay to edit or change a copyrighted image and then call it our own. Cropping and using only a portion of a copyrighted image in a blog post is still a violation of the image owner's copyright, even if we give credit...which leads us to the next consideration.

Consideration #2: What if I include attribution?

Taking and using another person’s photo or graphic and giving them credit as the owner of the photograph, a link back (if using it online), or any other type of attribution does not negate copyright infringement. It may make using someone else's photo without permission a little more ethical because we are not claiming the work of someone else as our own (plagiarism), but it does not make it right.

Consideration #3: What if the original photo is in my possession?

What if Grandma left us a box of old family photos. Can we use those in a published family history or upload them to an online family tree? Not necessarily. In most countries, including the United States, the creator of the work owns the copyright. In the case of an old family photo, copyright belongs to the photographer, not the person being photographed. Even if we don’t know who took the picture—and in the case of old family photos, we typically don’t unless a studio is identified—someone may still retain rights to the work. In the United States, that unknown photographer holds copyright until ninety years after the item was "published," or 120 years after it was created. This is why some copy centers will refuse to make copies or digital scans of old family photos, especially those that were obviously taken in a studio.

How to Find Photos Online That You Can Legally Use

Search engines Google and Bing both offer the ability to search for photos and filter your search by usage rights. This makes it easier to find both public domain photographs, as well as those labeled for reuse through licensing systems such as Creative Commons.

  • In Google Images search select "Search Tools" and then "Usage Rights." 
  • In Bing, after selecting images, you have to first enter a search term. At that point filtering options will pop up. Select "License" for images marked as public domain, free to share and use, etc.
  • Flickr also offers Creative Commons search capabilities. Under Flickr Advanced Search there are options to search only within Creative Commons licensed content. Of special note are collections hosted by archives, university libraries and similar institutions, such as this collection of over one million public domain photographs from The British Library.
  • Specialty search engines such as Veezzle let you search for free stock photos across multiple sites. Scroll down past the strip of photos across the top titled "Premium Stock Photos" to find the free results.

In some countries, photographs produced by government agencies may be in the public domain. Uncle Sam's Photos, for example, offers a directory to the U.S. Government's free photo collections. "Public domain" may be affected by both the country in which the photo was taken, and the country in which it will be used (e.g. works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain for use within the United States).
 

For More on this Topic:
Copyright and the Old Family Photograph (Judy Russell)