Excerpts from a conversation with Corbis legal counsel Christopher Pesce:

Things have changed a lot since the last revision of the Copyright Act in 1976. When that act took effect in 1978, all finished creative work put in a tangible form is protected by copyright without any formalities. Copyright simply springs into existence when the work is created. A lot of people don’t realize this. There are risks involved in using still imagery and all other types of content, because somewhere out there may be a copyright owner. Every time you digitize an image, put it on a CD, or publish work incorporating the image, it may be technically an infringement of copyright. As the material gets older and older, it is more and more likely to be in the public domain and the risk decreases. There are some formalities in the old copyright act that caused a lot of material to fall into the public domain unintentionally, so there is a richer store of material as you go back in time. But there is still risk in using old work. Evaluating that risk takes a little bit of judgment, a little bit of knowledge of the technical rules of copyright, and a little bit of practical experience.

Take, for example, a Matisse painting. Matisse died within the last 70 years, and his works are still protected by French copyright law. The person who made a photographic reproduction of a Matisse painting could claim a separate, independent copyright of that photograph. Now that copyright coexists with the underlying copyright of the painting. Then someone comes along and digitizes that photograph and arguably there is another layer of copyright. Someone then uses the image in a CD-ROM and there is yet another layer of copyright. All these rights holders need permission from the underlying copyright holders in order to proceed. We have this structure of permission above permission above permission, all of which need to be in place in order for the final product to be distributed and sold without breaking any laws in any countries in any part of the world. This is a particular challenge for CD-ROMs because they are so content-rich.

Here at Corbis if we can identify every copyright holder we are happy. We are much less comfortable when we can’t. Even the material we get from public domain sources we double check. We always get documentation of the agency’s policies.

For a small multimedia company, one safe approach is to create everything yourself and avoid big name sources. Keep your subject matter simple: a single personality, a single photographer. License their work and hire them to work with you. Build a title around your content, rather than building a title first and then searching for content. Whatever you do, do your homework and put in the effort to track down sources. You will never regret this.
There is a misconception that if what you are doing has an educational component you don’t’ need to pay attention to copyright. That’s not always true.

Clearing the rights of still images is relatively straightforward. Usually you’ll know where to go. With music, however, the hole gets deeper. Music involves copyright by the composer, as well as separate copyright for the sound recording. Then there are the unions. These are the hidden layers. The rule of thumb for us is to start the process of clearing music earlier than for images--expecting it to take significantly longer.

When you work with a photographer’s collection, it’s important to find out exactly what rights the photographer really has. Many photographers work for magazines and have contracts with them. Who owns the electronic rights? Twenty years ago that wasn’t an issue. It is now. Did the magazine license the images? Or did they purchase them outright? It’s vital to think this out first. It is extremely difficult to negotiate from a position where you need permission and the image is integral to your project. On the other hand if you think about this beforehand, you can make a judgment as to what you can hold on to or get rid of.